MEDIATION AND ITS PRINCIPAL CHARACTERISTICS
Mediation is a form of Alternative Dispute Resolution Mechanism in which two parties to a dispute meet and solve their issues in the presence of a third neutral party, generally called mediator. The role of the third neutral party is mostly to facilitate the process of mediation by helping the parties understand each other’s viewpoints and the complexities of the matter. There are certain principal characteristics of mediation because of which it is a very prevalent and preferred method of dispute resolution.
Mediation is a non-binding procedure controlled by the parties. Parties to a dispute and the mediator together analyze the conflict and proceed towards solving it. However, the parties cannot be forced to accept the solution and act according to the consensus reached. They are free to abandon the process or not accept the solution agreed upon. The two major attributes of most of the alternative dispute resolution mechanisms are confidentiality and cost-effectiveness. Parties cannot be compelled to disclose the information which they are uncomfortable with, and if they choose to disclose the information, such information cannot be made known to anyone else without their consent. With all such characteristics, mediation is a minimal risk option to choose. Even if the mediation process is unsuccessful, it is a good practice to define facts, issues and compromises which one agrees to make.[1]
PROCESS OF MEDIATION
Even after being the most practiced, mediation is the least researched method of conflict resolution due to the widely held view that the process of mediation is subjective and art that doesn’t need systematic analysis.[2] However, certain similar procedures and steps are employed in order to reach a solution. There are multiple before-and-after steps in the process of mediation.
Choosing/appointing the right mediator: It is certainly the first step in ensuring the success of mediation since the measure of the effectiveness of mediation a lot depends on the characteristics and strategies taken by the mediator. Some of the general parameters can be, credibility and relationship of the mediator or mediator’s organization with the disputants, experience and knowledge of the field, and ability to secure parties’ commitment to mediation for eg., informal oral agreement or written contract.[3]
Deciding the mediation strategy: After the above point, the mediator takes up the charge and work together with the parties to decide what mediation strategy is best suited to their situation; based on the interests at stake, possible outcomes which may benefit or cost both the parties or sometimes may benefit one at the expense of the other. The mediator must help the parties by describing the basic strategies for resolving disputes like competition, avoidance, etc. and assisting the parties in weighing the options.[4]
Conflict analysis and Interpretation of the dispute: Conflict analysis includes effective data collection. The data can be collected by direct observations, consultations with secondary sources or interviews with the parties. The next step, after collection of the data, is to integrate it and understand the elements involved in the dispute like disputants, dynamics of their relationships, issues, interests, etc.[5]
Detailed Mediation plan with procedural steps: The mediation plan is a series of steps that guide the parties to reach an agreement. For the first meeting, usually, a common plan is followed. Later, in subsequent meetings, the plan changes as per the course of negotiation and issues settled. Mediation is a continuous narrowing process wherein parties start with a large number of unresolved issues and narrow them down until none are left unresolved and the total agreement is reached.[6]
Opening Statements– The meeting begins with the opening statement of the mediator where he defines his role as well as the roles and duties of parties (clients and counsels) and mediation procedures. He explains the principles of confidentiality, neutrality and suggests behavioral guidelines and standard format. It is followed by the opening statements by the parties where they introduce themselves and put up their substantive issues or a combination of the history of relationship with the other party elaborating on their own needs, interests and non-negotiable position.
Setting an Agenda– One of the most significant roles of the mediator is to set an agenda for the negotiation. Agendas are issues that are identified by the mediators based on the concerns and demands of the parties. The common issues are usually given importance and with the consent of both parties, are prioritized from most important to least important.
Joint session– The mediator lets the parties discuss their issues and concerns and only interferes when a deadlock arises or to prevent the parties from ignoring the relevant points. He may request the parties to acknowledge the other side’s interests, even if they do not agree with those interests.
Caucus– If the session does not take any logical and conclusive turn during the course of negotiation, the mediator proposes the option or parties themselves may call caucus. Caucusing may allow the parties to talk to the mediator privately and separately. It could be an effective way of breaking the impasse in the negotiation.[7]
Reaching a Settlement– After various options are put at the negotiation stage, the next step is to evaluate those options in order to reach a settlement. The possible way is, finding Best Alternative to a Negotiated Agreement (BATNA) and Worst Alternative to a Negotiated Agreement (WATNA).
Bargaining Stage and Closing Statements– In the final stage, parties negotiate and compromise on various demands made earlier to reach a solution, which is most benefitting to both the parties. Usually, at the joint-session and settlement stage, agreements come out. If a mutually agreeable solution is not reached, then issues are shifted for a trade-off. The session concludes with the closing remarks of the mediator where he lists out the issues which have or haven’t been settled, along with spelling out the concord drawn up. Issues, time and venue for the next meeting are decided or informed to the parties with the hope and assurance of settling the matter to the satisfaction of both the parties.
MEDIATION STRATEGIES
The mediation strategy denotes an overall plan of the mediator to resolve and manage conflicts.[8] Strategies are employed by the mediator or/and parties to reap maximum benefits considering the time and expenses involved and also to make sure that the agreement is reached upon and profits are expanded. There is no definite answer to the ‘best’ or ‘right’ negotiation approach to be taken. Strategies are used by the parties based on their own interests, position, previous experiences or due to preference for a particular style as that may have borne results for them earlier.
The mediation strategies can be classified in terms of activities designed to overcome the sources of impasse identified in the content theory of mediation. Sometimes, strategies are chosen based on the type of outcome, the mediator wants to achieve.[9] These five categories of impasse are:[10]
- economic, where costs or interpretation of evidences may be suggested to reconsider
- organizational characteristics of management and unions,
- bargaining behaviours, where mediator needs to make sure that either party does not feel defeated and will have to develop effective modes of negotiations,
- the nature of issues, and
- personnel characteristics and interpersonal relations.
There are some elementary strategies that mediators prefer based on the contents, process and procedural aspects of conflict management.[11]
- Communication-Facilitation Strategies: As the name suggests, in this type of mediation strategy, the mediator takes a fairly passive role and lets the parties take the charge. He becomes a channel through which parties may co-operative with each other and exchange the pieces of information. Nonetheless, a little control over the whole session is displayed by the mediator by mentioning missing informations, offering positive evaluations, developing frameworks for understanding, etc.
- Procedural-Formulative Strategies: This is a more formal strategy taken by the mediators to determine control over the mediation session. Mediator charts out the procedural strategies to pronounce the conduct of the parties like choosing the site of the meetings, how often the parties will meet, media publicity, etc.
- Directive or Manipulation Strategies: In this form of mediation strategy, the mediator exerts the most powerful form of intervention by dictating the content and bargaining process of the mediation. Aspects of this strategy include changing perceptions, promising resources or threatening withdrawal, making substantive suggestions and proposals, etc.
Hence, it can be concluded that mediation strategies appropriate to the resolution of each category of impasse and outcome differ. Special situations are handled by the mediators using common tactics like caucusing, mediator pressure, power-relation management, negotiation teams and constituency management.[12]
The five basic strategies chosen by the parties to resolve disputes are[13]–
- Competition (I win – You lose)
- Accommodation (I lose – You win)
- Avoidance (I lose- You lose)
- Negotiated Compromise (I Lose / Win Some – You Lose / Win Some)
- Collaboration or interest-based negotiation (I Win – You Win)
Avoidance and Competition strategies expose the views of concern for substance and what the individual party wants, without having a concern for the other party. While, Accommodation signifies the concern for a long-term relationship, thereby letting the other party have what they want. Collaboration is an ideal way with which mediation should proceed. Compromise falls somewhere in the middle of all these objectives, and therefore, is the most preferred technique.
CONCLUSION
The process of mediation in most of the scenarios remains uniform but it is eventually up to the mediator and parties to follow or skip the steps to reach a desired outcome or agreement. Strategies employed largely play a major role in determining the effectiveness of the mediation process, therefore are rarely chosen randomly. There are clear distinctions in various types of strategies and they have their respective advantages and disadvantages. The choice also depends on whether the platform is international or domestic since practices or preferences may differ. In-depth research is needed to assess the reasons for the mediator’s choice of strategies and other reasons affecting the effectiveness of the mediation process.
[1] What is Mediation? World Intellectual Property Organization [https://www.wipo.int/amc/en/mediation/what-mediation.html].
[2] Thomas A. Kochan and Todd, The Public Sector Mediation Process: A Theory and Empirical Examination, Sage Publications [http://www.jstor.com/stable/173798].
[3] Tanya Glaser, Summary of “The Mediation Process: Practical Strategies for Resolving” by Christopher Moore, Conflict Research Consortium, [https://www.beyondintractability.org/bksum/moore-mediation#:~:text=The%20basic%20strategies%20are%20competition,guide%20their%20choice%20of%20strategies].
[4] Id.
[5] Id.
[6] supra n 2.
[7] What is a “caucus” in mediation? Neiman Mediation [http://www.neimanmediation.com/what-is-a-caucus-in-mediation/]
[8]Jacob Bercovitch and Su-Mi Lee, MEDIATING INTERNATIONAL CONFLICTS: EXAMINING THE EFFECTIVENESS OF DIRECTIVE STRATEGIES, International Peace Research Association (IPRA) [https://www.jstor.org/stable/pdf/41852891]
[9]Bobette Wolski, Mediator Settlement Strategies: Winning Friends and Influencing People, Bond University Dispute Resolution Centre School of Law [https://www.researchgate.net/publication/27827523_Mediator_settlement_strategies_Winning_friends_and_influencing_people#fullTextFileContent].
[10] David A. Dilts and Ahmad Karim, The Effect of Mediators’ Qualities and Strategies on Mediation Outcomes, Départment des Relations Industrielles, Université Laval [http://www.jstor.com/stable/23073646].
[11] supra n 8.
[12]supra n 3.
[13]Calum Coburn, Negotiation Conflict Styles. [https://hms.harvard.edu/sites/default/files/assets/Sites/Ombuds/files/NegotiationConflictStyles.pdf]