Mediation and Conciliation are important means of ADR having significant effects. Discuss and also explain their difference from negotiation.
1 .Mediation:
Mediation is a popular form of alternative dispute resolution. If you are considering using mediation to resolve your legal matter, look here for free and reliable advice regarding the mediation process, how to choose a mediator, what happens when a court orders you to use a mediator, and more.
In their celebrated book ‘ADR Principles and Practice’ by Henry J. Brown and Arthur L. Mario, the authors say that ‘mediation’ is a facilitative process in which “disputing parties engage the assistance of an impartial third party, the mediator, who helps them to try to arrive at an agreed resolution of their dispute. The mediator has no authority to make any decisions that are binding on them, but uses certain procedures, techniques and skills to help them to negotiate an agreed resolution of their dispute without adjudication.”
In yet another leading book on ‘Dispute Resolution’ (Negotiation, Mediation and other processes’ by Stephen B. Goldberg, Frank E.A. Sander and Nancy H. Rogers, it is stated as follows:
“Mediation is negotiation carried out with the assistance of a third party. The mediator, in contrast to the arbitrator or judge, has no power to impose an outcome on disputing parties.
Despite the lack of ‘teeth’ in the mediation process, the involvement of a mediator alters the dynamics of negotiations. Depending on what seems to be impeding agreement, the mediator may attempt to encourage exchange of information, provide new information, help the parties to understand each other’s views, let them know that their concerns are understood; promote a productive level of emotional expression; deal with differences in perceptions and interest between negotiations and constituents help negotiators realistically, assess alternatives to settlement, learn about those interest the parties are reluctant to disclose to each other and invent solutions that meet the fundamental interests of all parties.
Mediation is the last resort that is utilized when all other options, such as negotiation, fail. It requires for a neutral party to facilitate the mediation process and help out all parties in coming up with the best resolutions to the conflict. The mediator can greatly help in offering both sides the opportunity to see things in a wider perspective, thus providing each the avenue to better cope with a compromise.
“In a transformative approach to mediation, mediating persons consciously try to avoid shaping issues, proposals or terms of settlement, or even pushing for the achievement of settlement at all. Instead, they encourage parties to define problems and find solutions for themselves and they endorse and support the parties’ own efforts to do so.”
1.1 Main parts of mediation:
In mediation, the parties agree to work with a neutral third-party facilitator, the mediator, to resolve their dispute. The main difference between negotiations and mediation is that in negotiations, the parties work directly with each other, while in mediation the parties work with the mediator who facilitates the settlement.
1.2 Characteristics of mediation:
The parties agree to work with a facilitator or mediator to resolve a dispute.
· A mediator does not make a ruling like a judge or arbitrator.
· Mediation is voluntary so either party may choose to stop at any time.
· The mediator is neutral and impartial and does not represent either party’s interests.
· A mediator may meet with both parties, a joint session, or individually with one party, a caucus. When meeting in caucus, what is said to the mediator is confidential unless the party agrees that the information can be shared.
· A mediator can be used when direct negotiations failed.
· A mediator can be used when the parties don’t like each other.
· A mediator may be able to defuse conflicts or disagreements between the parties.
· The mediator may play devil’s advocate or give a reality check to the parties.
· Mediation is not therapy.
· If the case cannot be resolved through mediation, the parties may try arbitration
- Failure to object to evidence brought in during a mediation proceeding will allow this evidence to be brought into court later. (Regents of University of California v. Sumner)
- Mental competence of a party may be reported to call into question a settlement that was reached during a mediation session. (Olam v. Congress Mortgage Company)
- If parties agree contractually to waive confidentiality, then confidentiality will be waived by the court and the information released. (Evidence Code Section 1122(a)(1))These are just a few of the established exceptions to confidentiality.
2. Negotiation:
The most common form of dispute resolution is negotiation. By this means alone nearly all disputes are resolved. If negotiations fail, it is necessary to seek the assistance of a neutral third party or several neutral third parties to facilitate a solution.
Negotiation is one of the most common approaches used to make decisions and manage disputes. It is also the major building block for many other alternative dispute resolution procedures.
Negotiation is the process of which several parties agree to meet and engage in an open argument of which the principal intent is to come up with the most workable settlement for all the parties involved. All the participating parties that are engaged in negotiation resort to persuasive strategies to pave way for an expedient resolution at the most appropriate time. Below is a list of situations that rightly describe negotiation
. A client and a contractor negotiate the terms of the contract regarding a particular project.
. A police officer negotiates with a hostage taker to let go of his victim.
. The President negotiates with the senators about a law that needed to be passed
Negotiation occurs between spouses, parents and children, managers and staff, employers and employees, professionals and clients, within and between organizations and between agencies and the public. Negotiation is a problem-solving process in which two or more people voluntarily discuss their differences and attempt to reach a joint decision on their common concerns. Negotiation requires participants to identify issues about which they differ, educate each other about their needs and interests, generate possible settlement options and bargain over the terms of the final agreement. Successful negotiations generally result in some kind of exchange or promise being made by the negotiators to each other. The exchange may be tangible (such as money, a commitment of time or a particular behavior) or intangible (such as an agreement to change an attitude or expectation, or make an apology).
Negotiation is the principal way that people redefine an old relationship that is not working to their satisfaction or establish a new relationship where none existed before. Because negotiation is such a common problem-solving process, it is in everyone’s interest to become familiar with negotiating dynamics and skills. This section is designed to introduce basic concepts of negotiation and to present procedures and strategies that generally produce more efficient and productive problem solving
3. Why Parties Choose To Negotiate
The list of reasons for choosing to negotiate is long. Some of the most common reasons are to:
• Gain recognition of either issues or parties;
• Test the strength of other parties;
• Obtain information about issues, interests and positions of other parties;
• Educate all sides about a particular view of an issue or concern;
• Ventilate emotions about issues or people;
• Change perceptions;
• Mobilize public support;
• Buy time;
• Bring about a desired change in a relationship;
• Develop new procedures for handling problems;
• Make substantive gains;
• Solve a problem.
4. Characteristics of Negotiation and Mediation
Negotiation and mediation are the primary no coercive methods by which actors in conflict settle their disputes. This holds true for all levels of conflict, from the individual to the international. This should not be surprising, since joint, voluntary decision making obviously
has greater advantages and fewer risks for all parties than unilateral methods or binding third party methods such as adjudication (Pruitt and Carnival 1993: 2-6). In the international arena, negotiation and mediation are as common as conflict itself. They have been since relations between states began.
We define negotiation as a process by which states and other actors communicate and exchange proposals in an attempt to agree about the dimensions of conflict termination and their future relationship (Bercovitch and Jackson 1997: 25-26). Mediation in many ways is an extension of negotiations where the parties to a dispute seek the assistance of, or accept an offer of help, from a party not directly involved in the conflict, to resolve their differences without invoking the authority of the law. The key differences between the two methods relate to the additional resources and expanded relationships and communication possibilities that a mediator brings to the conflict management. The transformation of a dyadic negotiation
5. Difference between negotiation and mediation:
Negotiation and mediation emerge from specific situations. Certain preconditions must exist for conflict management even to be contemplated, and these preconditions often form part of the context of negotiation and mediation. For negotiation, the pre-conditions are:
(1) a low or decreasing probability of attaining conflict goals through violent struggle, withdrawal, or avoidance;
(2) a decreasing value of the conflict goals, relative to the direct costs of pursuing those goals and relative to other goals;
(3) a set of common or compatible interests between the parties, or at least the possibility of a settlement offering mutual advantages over continued conflict; and
(4) the flexibility by each leadership to consider negotiation (Stephens 1988: 57).
Negotiation is the process of bargaining between two (or more) interests. It can be conducted directly by the concerned parties or can take place during the mediation process. In negotiation, the concerned parties meet to resolve a dispute. In Nevada and California, after a suit was filed against the Lake Tahoe-area Metropolitan Planning Organization (MPO), environmentalists, developers, and other participants negotiated in workshops and small meetings to develop mutually acceptable environmental standards and long-range plans. The city of Salamanca, New York, negotiated with representatives of the Seneca Indian Nation to reach consensus on steps to provide economic develop ment opportunities for the tribe.<href=”#_ftn4″ name=”_ftnref4″ title=””>[4] Facilitation refers to skilled leadership focused on meeting process and organization. Agency staff or third parties can facilitate. Because it is broadly applicable to public involvement situations other than dispute resolution, facilitation is presented in this volume as a separate technique.
Mediation uses a trained, impartial third party to help reach consensus on substantive issues at disagreement among conflicting parties in public involvement. A mediator can be from within or outside an agency but must be neutral and perceived as such by all parties. While mediation can be binding or non-binding, only the non-binding mediation is considered here. Non-binding mediation generally has the following characteristics
· A neutral third party, impartial and unaligned with any side of the conflict, is appointed to find consensus; the third party has no decision-making authority;
· All interested parties are included, by agreement;
· The parties are asked to participate voluntarily;
· Opportunities are offered for local people, as well as officials or leaders, to be heard;
· Community people receive responses to their suggestions or concerns;
· The parties work toward reaching consensus; the third party makes suggestions for possible compromise positions and otherwise helps the parties negotiate;
· If agreement is reached, it is usually considered a commitment on both sides;
· Written agreements, memoranda, meeting minutes, or reports are usually included;
· Sessions are typically confidential and often protected by State statute as such
6. Empirical Result:
It has been noted that the outbreak of violent conflict in international politics is usually associated with the breaking off of diplomatic relations. Negotiation functions best under conditions of ?normal diplomacy,? and not the ?one-off? situation of armed conflict In this sense, mediation can serve as a regime surrogate because, in disputes involving armed conflict, institutionalization is impractical. Normal diplomatic negotiations are also impeded by hostility, which is generally higher in international politics, especially when force has been used (Rubin, Pruitt, and In cases of civil or intra-state conflict, bilateral negotiations are often impossible, because a government does not wish to be seen to negotiate with insurgents, lest the latter gain some legitimacy from it For these reasons, we suggest that intense antagonism prevents direct negotiations and makes mediation more likely. As the general distribution of negotiation and mediation reported above reveals, this is indeed the case. In intense international disputes, mediation is far more likely to be chosen than negotiation.
However, we wish to go beyond the general finding of the distribution of cases and examine the specific conditions under which negotiation or mediation are chosen. Using variables identified in the contingency framework, we cross-tabulated a large number of contextual and process variables with negotiation and mediation acceptance. In the following sections wereport on those variables which had a significant impact on the distribution of negotiation and mediation cases.
7. Issues:
The effect of the issues in dispute on the utilization of conflict management procedures relates to their substance, number, and complexity. It is an often articulated proposition in conflict research that tangible issues e.g., concrete, measureable issues such as money, resources, territory) are more amenable to successful conflict management than intangible issues involving beliefs, principles, ideologies, legitimacy, and images<href=”#_ftn5″ name=”_ftnref5″ title=””>[5]. Numerous studies have confirmed that intangible issues are the most difficult to resolve and depress success rates . Complex intangible issues create difficulties between the parties, difficulties which may be overcome only by a skilled mediator.
Procedural choice in conflict management is not simply a matter of the relative perceived or actual merits of one method over another. Disputants choose a method of conflict management using a calculus that takes into account their concern for their own and their opponent’s outcomes, the feasibility, costs, and benefits associated with different methods, as well as the nature of the conflict and its situational context. Understanding the parties ‘preference for dealing with their conflicts must include knowledge of the context in which their conflict takes place.
We have investigated these factors in an empirical manner, and found that a number of key factors related to the issues in conflict, the nature of the dispute, and the nature of the parties impact on the choice of negotiation or mediation. As such, we have confirmed the oft-repeated but until now, unverified) notion that mediation will be chosen and employed by states when the conflict is long, drawn out, intense, and complex, and the parties are willing to break their stalemate by cooperating with each other and engaging in some contact and communication (Bercovitch 1991: 17). When, on the other hand, the conflict structure is simpler and less intense, parties will most likely resolve it themselves through bilateral negotiations. In such circumstances, the parties may perceive third-party intervention as an unwanted intrusion and even resist it.
We found that a number of contextual factors can affect this choice: moderate levels of conflict, a relatively simple issue structure, homogenous parties, and a willingness to reach a settlement predispose states to use negotiations. High levels of conflict, complex issue-structure, heterogeneous parties, and a low motivation to reach an agreement make mediation the more likely strategy. The temptation to suggest a single strategy for all conflicts should be resisted.
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