Mediation Approach in Dispute Resolution - Book Report/Review Example

Lecturer: Introduction Mediation is a strategy that involves a third party volunteering to offer guidance to two parties with the aim of achieving an equally favourable resolve with regards to a prevailing dispute. The third party is usually neutral and engages a non-binding method without forcing a decision. Rather, the disputing parties make their own decisions while the mediator facilitates the process by assisting them to detect issues and evaluate possible foundations for agreement. They also assess the consequences of failing to settle the dispute. The mediator encourages the parties to tolerate each other’s standpoint with the aim of establishing a common ground. This paper presents a review of literature regarding mediation approach in dispute resolution highlighting the costs and benefits of mediation. It also compares and contrasts the process of mediation to other methods of dispute resolution. Mediation in Conflict Resolution The resolutions reached through mediation are by consent and therefore no party can claim to be a loser in the process. It develops a foundation for restoration of the relationship that existed before the dispute. In India, mediation is an age old practice that was reflected in the ‘Panchayat system’ in which esteemed village elders helped community members to resolve disputes. Contemporary mediation in India is applied in virtually all forms of disputes in communities and business as a strategy to reduce backlog of litigations. Minor disputes such as workplace conflicts well as between neighbours are effectively solved through mediation. It is also commonly applied in labour and environmental disputes (Xavier, 2006). The US and European Union (EU) have been engaged in mediation to settle political and interstate disputes, such as the Ohrid agreement that involved the government of Macedonia and the Albanian minority in 2001. The EU has also acted as a mediator in the territorial dispute of Georgia in Geneva (Wagner, 2003). Mediation has been applied successfully to handle cases of divorce and child guardianship in the US. The United Nations appoints eminent persons to act as mediators on its behalf to settle political disputes such as the Arusha talks for Rwanda in 1994 that sought to reconcile two communities involved in the genocide that led to the murder of close to 1 million civilians. UN has a Mediation Support Unit in the department of political affairs aimed at enhancing mediation success. It is mainly focused on the maintenance of international peace and stability (Nathan, 2004). Mediation takes several forms which are adopted depending on the mediator’s preference or the choice of the parties involved. Evaluative mediation involves offering the disputant parties a foundation to analyse their situation and guiding them towards a settlement (Doherty, 2008). The parties may seek the mediator’s view which is expected to be impartial and reasonable. In such a case, the mediator plays an advisory role whereby he/she evaluates the strengths and weaknesses of the standpoints of both parties and makes a prognosis of the outcome if the dispute is taken to court. Unlike evaluative mediation, facilitative and transformative mediation does not involve assessment of arguments or guidance to a settlement by the mediator (Bercovitch, 2004). Facilitation involves the mediator acting as a catalyst and guide to the process and not the result. The parties involved in the dispute point out the issues and state how they wish to discuss them. The mediator organizes the agenda, the meeting place for the dialogue. Transformative mediation is aimed at enhancing communication between the parties. Each party is encouraged to approach the issue with an open mind whereby new meanings can emerge. The mediator strives to promote a positive feeling about each other through constructive interaction. The parties critically evaluate the possibilities of compromise influenced by their own decisions while upholding individual strengths (Bergmann and Niemann, 2013). Mediation has an advantage of flexibility, which is important in ensuring that the process is modified to match the needs of the parties involved. The location and time for the meetings can be changed to the convenience of the parties. There are no permanent rules to be adhered to in mediation as is the case in a court of law and hence there are possibilities of exploring as many possibilities as possible (Duursma, 2014). The criteria for selecting objectives can also be varied for the benefit of the mediation process. The informal nature of mediation allows free participation by the parties through unrestricted expression of feelings. This enhances inclusiveness which promotes ownership of the goals of mediation. Confidentiality is a critical aspect of the mediation process. The dialogue is held away from the public and hence parties do not act out of intimidation. The mediator declares his/her commitment to confidentiality and hence the parties are motivated to open up and confide critical issues that form the basis for contention. The mediator is also allowed to meet the parties individually to enhance understanding of the principal interests of each (Tocci, 2007). Mediation is not binding as it allows the parties to seek other dispute resolution strategies if they are not satisfied with the process. Most disgruntled parties seek judicial process (Vukovic, 2014). However, mediation helps to save time and resources compared to lengthy law suits that seek to justify which party is right or wrong. Mediation allows the parties to reflect over the past and focus on the future while avoiding blame game with regards to the cause of the conflict. Successful mediation preserves and also strengthens the original relationship in contrast to judicial processes that leave one party resentful. Improvement of the relationship enhances the possibility of honouring the agreement (Folger, Robert and Baruch, 2001). Conclusion Mediation involves parties agreeing to settle a dispute through informed consent. It sets an important foundation for the parties to restore their initial relationship. Mediation takes several forms including evaluative, facilitative and transformative mediation. It is a flexible process that allows the methodology to be modified to suit the needs of the parties involved. It is an informal process that encourages free involvement of the parties in a dispute and hence all develop a sense of ownership of the resolutions. The non-binding nature of mediation allows the parties to seek alternative dispute resolution mechanisms if they are not satisfied with the process. References Bercovitch, J. 2004. International Mediation and Intractable Conflict. Beyond Intractability. Conflict Information Consortium, University of Colorado, available at, [Accessed 6th May 2014] Bergmann, J. and Niemann, A. 2013. The European Union as an Effective Mediator in Peace Negotiations? Conceptual Framework and Plausibility Probe, 2013/01. Mainz: Chair of International Relations, Johannes Gutenberg University. Duursma, A. 2014. A current literature review of international mediation, International Journal of Conflict Management, Vol. 25 Iss: 1, pp.81 - 98 Doherty, N. 2008. The Essential Guide to Workplace Mediation and Conflict Resolution: Rebuilding Working Relationships, London: Kogan Page Publishers. Folger, J. P., and Robert A. and Baruch B. 2001. Designing Mediation: Approaches to Training and Practice within a Transformative Framework. New York : The Institute for the Study of Conflict Transformation, 2001. Nathan, L., 2004. Mediation and the African Union’s Panel of the Wise, Johannesburg: Institute for Global Dialogue. Tocci, N., 2007. The EU and Conflict Resolution: Promoting Peace in the Backyard. London: Routledge. Vukovic, S. 2014. International mediation as a distinct form of conflict management, International Journal of Conflict Management, 25(1), pp.61 - 80 Wagner, W., 2003. Why the EU’s common foreign and security policy will remain intergovernmental: a rationalist institutional choice analysis of European crisis management policy. Journal of European Public Policy, 10 (4), pp.576–595. Xavier, A. 2006. Mediation : Its origin & growth in India, Hamline Journal of Public Law & Policy, 27 pp. 1-5. Read More