What is mediation/Conciliation? And their difference from negotiation?

ABSTRACT

This report presents an overview of the behavioral literature on negotiation and mediation.  Negotiation and mediation are procedures for resolving opposing preferences between parties.  Negotiation  involves  discussion  between  the parties  with  the  goal  of  reaching  agreement.  There is  no  limit  to  the  number  of parties  (“disputants”)  who  can  take  part  in  negotiation,  but  two-party  negotiations  are  the  kind most often  studied.  Mediation  is  a  variation  on negotiation in  which one or  more mediators (“third  parties”)  assist  the  parties  in  their discussion.  Opposing  preferences  are  found  in  all  social  arenas,  from relations  between children  on  the  playground  to  business organizations.  Hence a  theory  of negotiation  and mediation  is  essential  for  understanding  topics  as  diverse  as industrial  relations,  interoffice  coordination,  corporate  mergers,  group  decision  making,  and  international  relations.

Table of Content

What is mediation? ……………………………………………………………..1

The principal characteristics of mediation ……………………………………..2

Negotiation……………………………………………………………………   4

Mediation/ Reconciliation’s difference from Negotiation? …………………………….6

 What is mediation?

Mediation is the act of mediating[1]or intervention. This is the state of being mediated. It involves two parties who jointly invite a third party to facilitate reaching an agreement. In some cases the mediator might need to understand the contract law or to have access to comparative data. However, the principles of mediation require only that the facilitator is able to understand the objectives, beliefs and perceptions of the parties – and then facilitate mutual changes of position until the two parties can agree.

In a mediation procedure, a neutral intermediary, the mediator[2], helps the parties to reach a mutually satisfactory settlement of their dispute. Any settlement is recorded in an enforceable contract.

Experience shows that intellectual property litigation[3] often ends in settlement. Mediation is an efficient and cost-effective way of achieving that result while preserving, and at times even enhancing, the relationship of the parties.

 The principal characteristics of mediation

• Mediation is a non-binding procedure[4] controlled by the parties

• A party to mediation cannot be forced to accept an outcome that it does not like. Unlike an arbitrator or a judge, the mediator is not a decision-maker. The mediator’s role is, rather, to assist the parties in reaching a settlement of the dispute.

Indeed, even when the parties have agreed to submit a dispute to mediation, they are free to abandon the process at any time after the first meeting if they find that its continuation does not meet their interests.

However, parties usually participate actively in mediations once they begin.

If they decide to proceed with the mediation, the parties decide on how it should be conducted with the mediator.

• Mediation is a confidential[5] procedure. 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.
• In mediation, none of the parties can be compelled to disclose information that they prefer to keep confidential. If, in order to promote resolution of the dispute, a party chooses to disclose confidential information or make admissions, that information cannot, under the WIPO[6] Mediation Rules, be provided to anyone – including in subsequent court litigation or arbitration.
• Under the WIPO Mediation Rules, the existence and outcome of the mediation are also confidential.
• Mediation’s confidentiality allows the parties to negotiate more freely and productively, without fear of publicity.
• In mediation there should have a facilitator or mediator. 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. He or she just try to resolve the dispute according to parties’ interest.
• Mediation is voluntary so either party may choose to stop at any time if they come to a final decision by negotiation.
• The mediator is neutral and impartial and does not represent either party’s interests. Without being neutral it is absolutely impossible to came to a ultimate decision.
• 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.
• If the case cannot be resolved through mediation, the parties may try arbitration.
• In court litigation[7] or arbitration, the outcome of a case is determined by the facts of the dispute and the applicable law. In mediation, the parties can also be guided by their business interests. As such, the parties are free to choose an outcome that is oriented as much to the future of their business relationship as to their past conduct.

• Mediation is an interest-based procedure. Parties should have the interest to resolve the issue.

When the parties refer to their interests and engage in dialogue, mediation often results in a settlement that creates more value than would have been created if the underlying dispute had not occurred.

Because mediation is non-binding and confidential, it involves minimal risk for the parties and generates significant benefits. Indeed, one could say that, even when a settlement is not achieved, mediation never fails, as it causes the parties to define the facts and issues of the dispute, thus in any event preparing the ground for subsequent arbitration or court proceedings.

 Negotiation

Negotiation is the procedure[8] by which typically two or more parties come together and try to create a mutually agreeable contractual decision. Each party will have competing interests and, thus, negotiations can be quite intricate and lengthy. It comes to end when all parties have come to a concluding decision and have agreed to contractual rules.

Aside from the technical definition, negotiation is an intricate process that entails more than just numbers, details and information collecting. Skillful negotiation deals with every aspect of negotiation you can think of from running in depth cost analyses to learning how to deal with a specific party at its level and its comfort level.

Mediation/ Reconciliation’s difference from Negotiation?

In negotiation both parties are agree to work with each other to resolve a dispute whereas in mediation the both parties agree to work with a facilitator or mediator[9] to resolve a dispute[10]. The core difference amid negotiation and mediation there is a mediator or facilitator.  When two parties try to negotiate they have to meet each other. But during the mediation a mediator may meet with both parties jointly or meet individually with one party which is called a caucus. In negotiation there is an agreement and parties can bind themselves on that agreement. Unlike negotiation, in mediation the mediator has no decision-making authority and cannot bind the parties. A mediator does not make a ruling like a judge or arbitrator. The parties have their own interests in the negotiation but in the mediation the mediator is neutral and impartial and does not represent either party’s interests. In negotiation the parties like to use persuasion to get the other side to agree with them in the related issue. On the other hand, the mediator may play devil’s advocate[11] or give a reality check to the parties, but it is not the mediator’s role to persuade the parties.  Some negotiation might have fail because the parties cannot work with each other. This occurs then the both parties may need a third party like mediator. That means parties diverted to mediation from negotiation. A negotiation may not work because they might have too many conflicts. On that time a third party like mediator may be able to defuse conflicts or disagreements. So we can say that mediation is a part of negotiation. When negotiation does not work; mediation takes place. Some negotiations are not voluntary such as union negotiations. On the other side, mediation is voluntary and either party may choose to stop at any time. In negotiation when the parties can’t agree, they reach a deadlock or impasse. When negotiations reach an impasse, the parties may try mediation.

Conclusion:

Negotiation and mediation both are required to resolve the dispute arise among parties. Parties have the first option is negotiation. They may negotiate the issue to come to a final decision. This is the best solution for them. But, when parties do not want to negotiate each other and if they have too many conflicts then a mediator is needed to conclude the dispute. Mediator talk to each party. On the basis of that mediator gives the ultimate decision. So we can say that when negotiation has failed then mediation is needed. This process is needed in many types of conflict. One can apply this dispute resolution process in his/her organizational conflict, international conflict and even if in personal problem to solve it.

REFERENCE

• http://ezinearticles.com/?What-Is-Mediation?&id=1020538
• http://en.wikipedia.org/wiki/Negotiation
• http://www.beyondintractability.org/bi-essay/negotiation
• http://www.karrass.com/blog/tag/negotiating-characteristics/
• http://adrr.com/adr1/essayb.htm
• http://www.mediate.com/articles/ahrens1.cfm
• http://mg.wrytestuff.com/swa322165.htm
• http://en.wikipedia.org/wiki/Mediator
• http://www.rkmc.com/Intellectual_Property_Litigation.htm
• http://www.nolo.com/legal-encyclopedia/mediation-faq-29117.html
• NEGOTIATION  AND MEDIATION by Peter  J.  Carnevale

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