Theoretical Principles of the Mediation Process - Essay Example

Reaction Paper Affiliation Background of the Case The case presentsa woman who sues a fertilizer company for taking her pet; a raccoon called Rocky despite her reservation rights to bury the pet. There are three facts on the case; first the veterinarian puts the dead animal in the freezer, and as per standard practice, fertilizer company pick deadline animals from the freezer. Secondly, the claimant had put the tag "hold" on her pet hoping to bury. Having raised the pet for almost 12 years, she has an emotional attachment, and as per family portrait presented, the pet was part of her family. The third fact about the case is that the pet is now fertilizer, the court has requested out-of-court settlement, and this presents an opportunity in my training to exercise mediation process. Part 1: Theoretical Analysis Certainly, this is a perfect opportunity to apply theoretical principles of the mediation process. Firstly, the case presents two persons, the claimant and the fertilizer company representative who are willing to settle the matter outside the court. Secondly, the claimant has no interest for money; this is a good premise for this case. Her legal pursuit was primarily motivated by her feelings of hopelessness and grief. In theory, facilitated negotiations involve a neutral party who has relinquished powers to make a decision, this should be a fundamental principle that will guide me throughout the mediation process. Folger & Bush (1996, pg. 264) identifies that satisfaction story is an important theoretical model in this case. Notably, the fertilizer representative and the claimant are interested in the settlement of the case. As a mediator, I will apply the satisfaction story in order to achieve four important goals of mediation. Firstly, the process should remain as informal as possible and not drive by any legal rules; this promotes satisfaction of both parties involved. Secondly, I satisfaction story, an important goal is to focus on the interest of the parties involved. In this case, the claimant is in pursuit for her emotional satisfaction on her loss of the pet while the company representative wishes to avoid litigation and court fines. Based on this case, my interest as a mediator will be to seek common ground that is acceptable to both parties. Besides, satisfaction story model will allow me to ensure that the parties arrive in a commitment in meeting the agreement. An important factor in the mediation process is the satisfaction. It is achieved after clear deliberation that strikes a balance of both parties interest (Folger & Bush 1996, pg. 266). Moreover, this model is important in ensuring a high level of satisfaction in the process. As a mediator, my commitment should be anchored on ensuring both conflicting parties solve the problem with uttermost level of satisfaction. Essentially, satisfaction stories when applied will ensure that each side give and take, it thus saves time of the mediation process. Additionally, the satisfaction story concept applies in this case, in this system of mediation the focus is raising a disadvantaged individual power to create own interest against a bigger entity. In this case, the claimant is given an opportunity to be heard through mediation process. It offers a unique opportunity to the claimant and the company representative to relinquish his position and negotiation on a common level (Folger & Bush 1996, pg. 267). As a mediator, the magnitude of both companys representative and the claimant should be seen to be equal parties. It is an important element in, mediation. While remaining neutral, I will strive to ensure that by virtue of being a representative of the company, the agent does not dictate the mediation. All parties will remain equal with rights to be heard. Besides, this process does not seek justice, but envision resolution that is favorable to both parties. In theory, the elements of satisfaction story will be an immense guide to this case. Firstly, transformational story encapsulates three important elements in a mediation process. Evidently, it dictates that the process should be built on mutual respect, self-confidence and self-reliance on the parties involved. Perhaps this is the most important theoretical concept that highlights the existing problem because it allows the claimant and the defendant to define the goals and definition of the problem in their terms. Under this concept, it envisions an outcome that will shape individuals in the society. Moreover, the nature of this case requires the application of elements of principled negotiations. In theory, these attributes include recognition of the validity of the claims and striking a balanced decision that each group will feel recognition and sense of worth. Besides, the communication goals at each stage of mediation would be evaluated in order to facilitate the expeditious resolution of the case. Communication goals include the set terms of the outcome of the conflicting teams (Folger & Bush 1996, pg. 270). It envisions ensuring the conflicting parties take a flexible position that does not only ensure speedy resolution, but allows compromised resolution. In mediating this case, three important theoretical elements would guide my sessions. The initial stage is the collection of observations and facts from the conflicting parties. This stage is crucial, it determines the entire process. The theoretical principle of satisfaction story will allow me give each party an opportunity to express the case and possible resolution. Besides, it ensures that I give both parties equal platform as an independent entity with the right I any position they take. Besides, it eliminates any trace of prejudice that may occlude an ideal negotiation session. Satisfaction story ensures that I strive to mediate a sustainable conflict resolution through pursuing solution that is acceptable to the claimant and defendant. In addition, it allows recognition of the unique position that would be probably taken by the parties. According to Folgers & Bush (1996, pg. 271), third party mediation is a common traditional conflict resolution that is anchored in understanding the dispute and establishing a shared view. The interpreting of the dispute should be systematic; the authors termed the process as "framing "the dispute. Although there is a little body of literature on framing process, the speculative view should ensure the conflict framing achieves four key attributes. These are efficiency, fairness, participants satisfaction and effectiveness. Similarly, to the principle of social justice, there is special recognition of fairness and participants satisfaction. Any expression of dissatisfaction by the claimant and defendant would be a sign of jeopardized process. Unlike the court cases, mediation requires mutual understanding, elimination of argument competition and joint effort in recognizing possible solutions. A Model of Third-Party Intervention Folger & Bush (1996, pg. 273) suggests a theoretical framework that emphasizes on the systematic third party intervention in the resolution. Based on my unique position in the above case, I find this framework quite relevant because on the emphasis of outcome that is agreeable. In this model, the emphasis is on a three-tie process that recognizes dispute scenario, third party role and outcomes as integral components of the mediation process. Dispute scenario in this case is a fight over the burial and disposal of the dead pet, which in essence has long been erroneously disposed. The claimant wants the company apology and probably compensation for denying her rights to bury Rocky, her pet. Under this first step, the model identifies relationship among parties and third party experience on the case. Notably, the case would be largely determined by ability to highlight contentious areas. Secondly, the model recognizes third party role as an autocrat, mediator and arbitrator. In line with this model, I will strive to mediate in the most sensible and non-biased manner as possible. In addition, the model recognizes third party as motivator and restructure. Evidently, the defendant although sympathizes with the loss of a pet is driven by the notion that his company did not cause the death and by decomposing it to fertilizer, it was within his company standards. On the other hand, the claimant wants the company recognized its misconduct had added more pain to her grief. Based on the mindset, as a mediator I will be obliged to establish a new scenario and restructure the minds of the parties. With the kind of mentality, the case may go back to the jury, and this would be a sign of failed mediation. The last focus of this model is on outcomes. Outcome criteria are seen from three key areas namely the resolution of the case; nature of the agreement reached and disputant perception. In each of the three criteria, there should be satisfaction between the parties (Folger & Bush 1996, pg. 273). Besides, the conflict solution reached should be agreeable and sustainable to the effect of restoring confidence on each of the parties. Part 2: Simulation Process One of the primary pillars of the conflict resolution framework lies on the simulation process that offers a systematic step-by-step to handle disputes. There are twelve stages of navigating through simulation process of dispute resolution. The initial stage is establishing a relationship with the conflicting parties. Kressel (2000, pg. 523) states that the first stage in my case will be guided by five principles. An important preliminary is to make sure the parties meet outside the courtroom. Notably, the first contact offers an important opportunity for me to assess the interpersonal relationship that probably exist and subsequently set rules of engagement. Besides, first contact will help build credibility of the dispute, ensure rapport is established and educate the parties about the process. In addition, the establishment of the relationship would be driven by building commitment of the conflicting parties to the mediation. Essentially, simulation is an intricate process directed by goals and objectives. Although every stage is important, the initial stage is relatively more important because of the establishment of contact, relationship and terms of the process. The second phase involves of the selection of a strategy to guide mediation. Because of the nature of my clients stand, I will be obliged to lay down guiding rules and principles. My role in this phase will be to assist the parties to assess various options to conflict management and resolution. Under the principle of satisfaction story, I would have to allow the conflicting parties set mutual goals and timeline of achievement. In allowing participants independence and guiding them to agreement in this stage, I will be able to achieve the highest satisfaction in the ultimate solution. Besides, my role in this stage is to assist parties select an approach based on mutual consent. There should be no coercion at this phase because imposing position on the party will kill the voluntary nature of the process (Kressel 2000, pg. 524). In addition, this is a stage of factual data finding, as a mediator I am required to ensure the accuracy of data shared with clients as much as possible. Third phase is fact collection and analysis phase, as a mediator the stage is important for two main reasons. First is a collection of information about the pet from the claimant, veterinary officer and the company representative. Secondly, collection of the information allows for verification of information. Relying on information from the conflicting parties alone may not give accurate data. In the mediation process, every party attempts to argue a version of events and issues in competing manner (Kressel 2000, pg. 527). As a trained mediator, my priority will be obtaining non-partisan information, establish the fact and correct any misleading information as much as possible. Stage four involves designing a detailed mediation plan. It is one of the integral stages that should be approached with the uttermost caution. It is prone to errors and omission and, as a mediator will strive to incorporate the disputing parties as much as possible. In this phase, there is identification of strategies and consequent noncontingent moves that would move the parties towards an agreement. Besides, identification of contingent plan to address the peculiarity of circumstance would be incredible Stage five involves building trust and cooperation among conflicting parties. Usually, the mediation process should be approached with minds open. Existence of any barriers would be detrimental to the overall outcome of the process. Still at this stage, there are three key issues that should be addressed. There is psychological preparation of parties, handling of repulsive emotions and checking perceptions to eradicate stereotypes tendencies. In respect to my case, the claimant perhaps is emotional, but in accepting to settle the matter out of court, it depicts her faith in mediation. I would not accept adversity in this stage. Stage six involves mediation session. As a mediator, this is an opportunity to allow conversation between parties. There are two important deliberate role of mediator in this phase, facilitation of guiding rules and monitoring the tone throughout the process. If this stage is not cautiously approached, the process would easily be jeopardized at an early stage. Sobriety and limiting issues to the relevant issues is an important strategy that will limit time spent. It also serves to assist the claimant vent her emotions appropriately and facing the process without emotional influence. Emotional approach of solving dispute leads to impaired process. The seventh stage involves defining issues and setting the priority. It is this stage that allows parties navigate through the contentious issues in a systematic manner. Besides, at this stage there is a reprieve because some of the issues would be likely to agree will have been accomplished (Kressel 2000, pg. 527). In my case, solving issues on whose liability was would have been done. Besides, the stage provides a moral ground to seek agreement on issues already discussed. The contentious issues would be pushed ahead; however, those issues agreed on should have their discussion closed to avoid repetition. Stage eight involves uncovering hidden interest among parties involved. With my claimant, issues of compensation would be discussed in length. In mediating, my role is to educate the parties on necessary options and facilitate the parties to lay down substantive procedure and psychological demands. In the next stage, there is the generation of options to settle the disputed issues. Besides, there is the establishment of awareness among parties, generate options from the participants as much as possible. In order to win the confidence on the final agreement, the parties should be given time to reflect on the implication of each alternative to their personal or a company. After that, there is a deliberate assessment of options with critical focus on the interest of the claimant and the defendant. Besides, the cost and benefits of options are explored by my clients. The next phase will involve final bargaining based on the available options. With this stage, the available options are theoretically and practically agreeable by the parties. The last phase is settlement of the dispute through achieving a formal agreement. Two critical purposes at this stage are the establishment of procedural matters to operationalize the agreement and enforcement and commitment mechanism (Karambayya & Brett 1994, pg. 177). With my mediation, case it is a substantial likelihood that the company will have to compensate the claimant for his pet, Rocky. Part 3: Discussion My personal experience with this case substantially matches my expectation of the nature and process of conflict resolution strategies. Firstly, there is a contentious issue about a company erroneously processing a pet into fertilizer despite reservation by the claimant. The case is referred to the mediation from the court and the parties agree on deliberate grounds. The process of the case defines an ideal scenario in a mediation process. As a mediator, I undertook all the necessary procedural steps addressing issues in each stage as comprehensive as possible. Initially, bringing the conflicting parties into a round-table discussion on deliberate minds of the claimant and company representative in itself is an initial success. There were no better options in an ideal mediation. Secondly, engaging with the parties through building of rapport and trust defines an ideal approach by a third party in a mediation process. In addition, collecting information from the parties and the verifying accuracy of the information without appearing party to the conflict allows me to boost of professional mediation. In addition, the experience of mediating such case met the minimum requirement of an ideal mediation. Evidently, as a mediator, I take a facilitators role throughout the process. In addition, recognition of the interest of the claimant and companys position is given equal attention throughout the process. The most important attribute that was impressive from the experience is ensuring that the negotiation remain within the contentious issues. Conclusion Dispute resolution through mediation is one of the traditional ways that parties agree to seek logical conclusion rather than legal eventuality of a conflict. At end of this case, one thing is clear, it was not about justice to the claimant or punishment to the fertilizer company. It is a perfect example of mediation and mutual justice based on the agreement of parties, not laws. Reference Kressel, K. (2000). Mediation. In M. Deutsch and P. Coleman (Eds.), The handbook of conflict resolution (pp. 522 a 545). San Francisco: Jossey-Bass.  Folger, J. P., & Bush, R. A. B (1996). Ten hallmarks of transformative mediation. Mediation Quarterly, 13(4), 263- 278. Karambayya, R. & Brett, J. M. (1994). Managerial third parties: Intervention strategies, process, and consequences. In J. P. Folger and T. S. Jones (Eds.), New directions in mediation: Communication research and perspectives (pp. 175-194). Thousand Oaks, CA: Sage. Read More