The Third Is Necessary, if Two Aren't Able to Resolve Their Dispute - Research Paper Example

 Mediation When two parties are conflicting, another neutral party has to intervene and bring peace between the two. An example is this scenario where Ken and Peter, two businessmen, who experienced a three month conflict which almost saw them, end up in the court corridors. It all started when Ken claimed that Peter had been supplying to him poor quality furniture, and the customers were complaining too much. Peter runs a carpentry business which he opened after graduating from a local middle level college. Ken is a business person who has established himself in selling furniture. Peter signed a contract of supplying furniture to Ken, a business that has seen him succeed over time. However, recently Ken has received several complains from his customers about weak furniture that tends to wear out very fast or break quickly. Considering the fact that Peter was his main supplier, he channeled the complaints to him. He wrote him a text message stating that he was so disappointed in him and he will not pay him the full amount as per the contract. Peter was so frustrated and resolved to sue Ken. However this did not occur since a mediator intervened on time. He suggested that they talk about the issue first before taking other stern action. They agreed to meet at the local pub and try to look into the problem. The main aim of a mediation process is to help the disputants reach a voluntary settlement of their differences through an agreement that defines their future behavior (Hayes, 2013). The main components of mediation involve voluntariness, whereby the party can reject the process or its outcomes without consequences. Another aspect is mediator’s neutrality where by the mediator has no interest in the outcome. In a mediation process the parties participate in a joint decision making process and make the resolution decision themselves. The mediator’s work is to deal primarily with the subject and attempt to move the parties towards reconciliation regardless of who is right or wrong. His role involves instinctive reactions, institutions, keen interpersonal skills, sensitivity to subtle and psychological and behavioral indicators, in addition to application of logic and rational thinking. An assumption made in mediation is that the parties will be able to reach an agreement and the relationship will go on after the resolution. There are eight steps taken during a negotiation process. Andrew, a friend to both Ken and Peter decided to intervene and act as a mediator. He followed these eight steps to achieve the reconciliation. In the initiation process, the two parties submitted their complaints to the mediator, Andrew. Ken complained that Peter has been supplying him poor quality furniture which is really affecting his business. He has lost very many customers with others bringing complains every day. After thinking about the problem, he realized that his supplier is the main cause. On the other hand, Peter denied the allegations and claimed that he ensures quality to all his customers and its Kens carelessness and mishandling of the furniture that caused all the problems. He denied the claim by Ken to be compensated for the loss. The next step for Andrew after listening to both sides was preparation. This is where the mediator seeks knowledge about the parties and characteristics of the dispute. These include the balance of power between the two parties, primary source of pressure exerted on the parties, existing personal conflicts between the parties and the extent of the settlement authority of the parties. For instance, in this case it was realized that the external pressure was coming from unsatisfied customers who thought that they were being exploited. There were no personal disputes between the parties. The introduction part is where the mediator explains the mediation process to the parties, assesses their attitude towards the process and encourage active participation in the process. This is the point where the mediator establishes control of the process, determines the issue in the dispute and position of the parties. This is where he creates a rapport with the parties, respectability of the mediator and the mediation process. The mediator should asses the parties’ capacity to participate in the mediation e.g. If there are severe emotions, drugs or health issues, the process can be postponed. In this case, Andrew assessed the two parties and concluded that they were suitable for the process. Problem statement stage is where the parties openly discuss the problems by stating their respective positions (Cooley & National Institute for Trial Advocacy (U.S.), 2006). Generally, the complaining party tells his story first. The mediator role at this point is to actively and empathetically listen. H e may take notes, ask questions, calm an individual if necessary and clarify some points by asking pointed questions. Ken was given a chance to explain his position and he expressed his frustration. He blamed Peter for the losses he experienced lately and concluded he may never pay him the full amount. Peter, on the other hand, turned down the allegations saying that his other customers have never complained and Ken has no ground to accuse him. It was a heated debate until the mediator had to stop the argument. This led to another step called generation and evaluation of alternatives. Since the parties successfully completed the previous session, the mediator next call is to play two fundamental principles of effective mediation: creating doubt in the parties minds as to the validity and strength of their position on the issue and suggest alternative approaches which may stimulate agreement. The mediator directs the parties to separately brainstorm to produce alternatives or options, encouraging the parties by commenting on the possibility of success. He may suggest new options not considered by the parties. He should comfortably suggest these options in such a way that the parties can freely accept or deny them. Andrew, the mediator, suggested that the parties agree on the way forward so that no one would feel unfairly treated. The two parties agreed to write down an agreement and clear the issue. The next step was to select an alternative. The mediators work is to compliment the parties on their progress, sometimes using humor to release tension. He may eliminate the unworkable options and help the parties determine which of the remaining options. For example, Peter and Ken decided that Peter will compensate him for the loss up to 10%.Peter also promised to look into his work and correct any problem that might be causing the inequality. Ken decided to enhance his transport system which may also be contributing to the breakdown of the equipment. The parties are usually encouraged to compromise on some unnecessary small points. This will make way for reach an amicable solution faster. Agreement is the final stage whereby the mediator clarifies and summarizes the terms and conditions reached. He obtains the assent of each party to those terms, set up a follow up date if necessary, and congratulates the parties on their reasonableness. The mediator does not always become involved in the drafting of a settlement agreement. In this case, Peter and Ken signed the, agreement which would be settled in two weeks’ time. A successful mediation requires that a mediator focuses on interest not positions, look for objective standards and criteria to guide solution development, develop integrative solutions that address needs of all parties, search for ways to expand options or resources and develop tradeoffs to satisfy interests of different strengths (Abramson, 2004). Mediation provides unlimited opportunities for the parties to exercise flexibility in communicating their concerns and priorities regarding the conflict.However, like anything else, mediation has its own shortcomings including lack of real due process safeguards. The participation depends on willingness and no one can be compelled to participate. In addition to this, because the neutrals have little power over the parties, outcomes can be sometimes influenced by the power possessed and exercised behind the scene by one or more parties. There is also no development or application of public standards.However, mediation is the best way to solve conflicts without going through many procedures. References Top of Form Abramson, H. I. (2004). Mediation representation: Advocating in a problem-solving process. South Bend, Ind: National Institute for Trial Advocacy. Bottom of Form Top of Form Cooley, J. W., & National Institute for Trial Advocacy (U.S.). (2006). the mediator's handbook: Advanced practice guide for civil litigation. South Bend, Ind: National Institute for Trial Advocacy. Top of Form Hayes, A. F. (2013). Introduction to mediation, moderation, and conditional process analysis: A regression-based approach. Bottom of Form Bottom of Form Read More