Evaluation of Mediation - Essay Example

Self-Evaluation Paper Introduction History has shown that human beings are bound to be in some sort of dispute or conflict at a given period of time. As a result, ways have been devised to solve these disputes or conflicts in amicable way in a bid to remedy the injured person or/and prevent detrimental and sometimes fatal consequences of such disputes or conflicts (Moore 9). For over the years, legal proceeding has been the most preferred means of addressing disputes between parties. Legal proceedings involves a party initiating a legal case against the other party, and the other party is then obliged to appear in court to counter the accusations made against him or her regarding a particular dispute. However, this way of solving dispute has been criticized for being expensive, time-consuming, and in some cases leading to unfair and unjust outcomes regarding particular cases (Frenkel and James 22). As a result, alternative dispute resolution mechanisms have been devised in order to provide an economical, quicker and a more just and fair outcomes to parties in dispute. Mediation is one of the main alternative dispute resolution mechanisms. Mediation is a confidential and voluntary type of alternative dispute resolution. This method involves an impartial and independent person(s) who helps two or more parties to reach a solution over a dispute which is acceptable to all the parties. It may involve talking to the parties separately or together. Often, mediators do not make judgments, instead they ask questions in an attempt to unravel underlying problems relating to the dispute, help the parties in understanding issues and clarifying the alternatives for resolution of their dispute (Goodman 51). Principles of Mediation Being a critical alternative dispute resolution mechanism, mediation is guided by a number of principles that ensures that it achieves its objectives effectively. There are five principles of mediation which are generally- recognized that guides the mediation process. However, it should be noted that there are more other elements or principles that have been incorporated, but in a broader sense they still fall under the five which are generally- recognizable (Frenkel and James 46). The first principle is the principle of informed consent that requires that prior to consenting participation in mediation, the parties in dispute should be informed about their legal options and rights, as well about the mediation process (Wall and Dunne 217-8). The second principle is that of voluntariness which requires that mediation process should be voluntary and that parties should enter into it freely and in any outcome resulting from the process. The parties are also free to end their participation in the process at any time. The third principle is that of confidentiality which seeks to make parties aware that the process is confidential. This enables them to freely explore options and speak without fear that their communications in the process might be used against them. Also, confidentiality enables a party in dispute to request that particular information disclosed to the mediator not to be shared with the other parties (Frenkel and James 49). In addition, impartiality is a mediation principle which dictates that the parties are entitled to impartial and fair process involving an impartial and neutral mediator. The final principle is that of self-determination that requires that the parties and not the mediator to define the scope of issues to be addressed at mediation, and that the parties will determine the mediation’s outcome or results (Goodman 105-6). In order to understand the concept of mediation clearly and better, this self- evaluation paper will; consider the evaluation of my performance as a mediator. The paper will include the agreement reached by the parties and discuss the lessons learnt from the process that are deemed to be helpful for the future. I acted as a mediator between these two parties: Sammy Atwater (Plaintiff) and James Skillen (Defendant). All the principles and ethics of mediation will be followed during the mediation process. General Information for all Parties Sammy Atwater and James Skillen live in the same neighborhood. Atwater is single, 23 year-old, and new to the city. He just moved here from another part of the country in early August to take a job with a local business. It was necessary for Atwater to be away on business for several days in early September. During his absence, Atwater asked the Skillen’s 15 year-old son, Eddie, to mow his lawn and operate her automatic swimming pool cleaning system. The system should be turned on at least once every four days and left running for two hours. Eddie cuts grass for several neighbors and generally asks $8.00 per time, although he had never before been employed by Atwater. Eddie turned on the pool cleaning system and returned home to watch football on television. He returned four hours later to find the pool still dirty and the cleaning system apparently broken. Unsure as to why the pump was not working and uncertain whether he had done anything wrong, Eddie put the equipment away and said nothing about the problem to anyone. Upon returning from his business trip, Atwater noticed the dirty swimming pool, discovered debris had clogged the filter in the cleaning system and that the electric motor which drives the pump would not operate. It appeared that leaves from a dying mulberry tree had fallen into the pool and caught in the filter. This caused the pump motor to overload and, after a few hours, burn out. Repairs, including replacement of the motor, came to $489.24; Atwater wants the Skillens to pay him for the repairs that he claims were caused by Eddie’s inattentiveness. A neighbor of both Atwater and the Skillens learned of the incident and suggested to both that they try resolving the problem at the Interfaith Conciliation Service (ICS) operated under the auspices of several local churches and synagogues, and they agreed. ICS is staffed by trained volunteer mediators and is available to anyone without charge. At this point, Atwater and Skillen have not spoken to each other concerning the incident. Indeed, they have been avoiding one another, and their mutual neglect at seeking a resolution has become increasingly embarrassing to both. Neither Atwater nor Skillen have ever participated in mediation before. This general information will guide how I engage the parties to the dispute. It provides me with the background information on the dispute and the possible questions that I should direct to the parties. Opening Statement for Mediation Hello Atwater and Skillen! Thank you both for attending this morning. My role is to assist you find common ground over the matter and to see if it is possible to come up with a resolution that is agreeable to both of you. If we fail to come up with a resolution, I will, as the mediator decides on possible steps that will follow. Prior to getting started, it is important to be aware of some ground rules: each party will speak at a time without disruption; the mediation will take a maximum of 4 hours; and all cell phones and pagers should be off or in silent mode. Since both of you have agreed to these rules, I believe the session will proceed smoothly. The outline of the process will be as follows: I am going to ask each of you to individually present your point of view regarding the dispute at hand. While one of you is presenting his viewpoint, the other must listen to what is being said. In order to ensure this, I am going to ask the other party to restate what was the party presenting his viewpoint had just said. Thus, for example: Atwater, you will complete presenting your viewpoint around a question I have asked; Skillen, you will have to restate what Atwater has just said. Is that process clear? Thank you for getting it clear because clear understanding of restating skill is a critical part of the process of mediation as it forces better listening and clear up any possible misunderstanding. Additionally, as we proceed in the process, I will also be requesting each of you to present solutions to some of the problem that arise. As you are aware, the entire process has adhered to the principles and ethics of mediation, that is, confidentiality, voluntariness, impartiality, self-determination, and informed consent. Therefore, kindly be free to bring out your point of view without any reservation whatsoever in order to have a productive session. Similarly, if you feel that you deserve certain entitlement during the process feel free to mention; the same applies to if you feel that certain personal rights are being violated. Mediation Process Atwater’s Point of View I started with Atwater as he is the plaintiff. Atwater pointed out that he had considered Eddie (Skillen’s son) as a grown-up person who is expected to perform responsibility according to instructions provided to him. His view was informed by the fact that Eddie was old enough and that even though he had never employed Eddie before, he had seen him performing tasks to neighbors. Therefore, since he was to be away on business for several he days, he deemed it fit to look for a responsible person to take care of some duties; to him, Eddie fit to the billing. However, upon return, he was surprised to notice that Eddie had not performed the assigned duties accordingly. As a result, the debris had clogged the filter in the cleaning system and that the electric motor which drives the pump would not operate. The dirty state of swimming pool and the failure of electric pump which drives the pump would not operate not only saddened Atwater, but meant that he would incur some costs of which he would not have incurred if Eddie had been attentive. He had found out that the cost of repairs including replacement of the motor would cost him $489.24. He found this cost high and that which he should incur because it arose due to another person’s failure to perform his duties accordingly. Therefore, he wanted the Skillens (Eddie’s parents) to pay him for the repairs that he claims were caused by Eddie’s inattentiveness. Skillen’s Point of View Skillen was keen to mention that Eddie was in the midst of those difficult adolescent years. As such, his actions of omissions or commissions should be considered in the light of this reality. Being a inevitable stages in human life, it often lead to acts that persons in other stages of life might not commit. However, he noted that this should not be an excuse for every wrongdoing that he commits or any other adolescent for that matter. James Skillen explained that he had talked with his spouse (Jean) about this matter and that the two decided that this incident should be used as a means of teaching Eddie responsibility. To achieve this, they were prepared to have Eddie pay Atwater up to $25.00 per month until full restitution is achieved. Nonetheless, Skillen was keen to add that as the neighbor to Atwater, he had complained twice to the real estate agent of the house that Atwater is living in about the need to cut down the dying mulberry tree. The leaves that clogged the filter in the cleaning system appeared to have fallen from the dying mulberry tree. As a result of the clogging, the pump motor overloaded and eventually burnt out. Therefore, Skillen argued that the damage that had occurred could not be attributed solely to Eddie and that other factors had come into play. As such, he wanted the cost to be paid to Atwater be reduced considerably to reflect the role of these other factors in the damage caused and subsequent costs to be incurred. Outcome of the Mediation Both parties and I listened keenly to the point of view of each other. This was evidenced by their ability to restate the point of view of each other. Also, both parties observed the ground rules that had been established prior to the start of the mediation process. I once again emphasized that confidentiality of the information and self-determination in the process will be observed to the later. Before proceeding to the determination of the outcome of the process, I thanked them for a commendable manner in which they conducted themselves during the process; they observed all the rules especially attentive listening. Then, the time to determine the outcome arrived. I demonstrated impartiality by acknowledging the point of view of each of the party and by mentioning that their desired outcomes were “fine” based on how they had considered the situation. However, I pointed out to them that a common ground has to be reached so that the next step can be undertaken towards resolving the dispute. Atwater had wanted Skillens to pay for the whole cost of repair- $489.24 because they were caused by their son’s inattentiveness. On the other hand, Skillen had wanted that the amount they are requested to pay be reduced considerably because the damage that had occurred could not be attributed solely to Eddie as other factors had come into play such as unnecessary presence of a dying mulberry tree and the adolescence stage that Eddie was going through. Based on their positions, I explained to them that a common ground has to be achieved if a resolution is to be attained amicably and within reasonable time. I reminded them that they were neighbors and they might remain so for extensive period of time and as such, disputes such as this one should not ruin the desired “good neighborliness” between them. I stated to them that maintaining good neighborliness is very critical because of the following reasons: reduced or non-existence of tension or friction between them; positive engagement between them on matters that affect their neighborhood; and friendship that might lead to long-term benefits among other reasons. Therefore, I asserted to them that as they resolve this dispute they should put these reasons into perspective in a bid to forge forward long-term and fruitful relationship. I was impressed to observe that both parties were attentive to my sentiments as demonstrated by their constant nodding of their heads in affirmation. Actually, Atwater reckoned my sentiments and argued that since he is a “new” neighbor to Skillens, he would not wish a situation whereby their neighborliness and possible friendship start on a “wrong foot”. This opinion was reckoned by Skillen. “Now that you seem to be reading from the same script what is the way forward?” I asked them. Atwater was the first to mention that he is willing to cater for the part of the repair costs, particularly because he had failed to remove the dying mulberry tree whose leaves had greatly led to the damage caused. So, he stated that he would cater for $250 and Skillens to contribute the rest. Skillen agreed with this arrangement because his desire for the cost to be reduced considerably had been considered, and also because the amount was not far from the amount that the local plumber had determined. Since one of his demand had been met, Skillen stuck to their (him and Jean) proposal that Eddie should pay Atwater up to $25.00 per full until full restitution is achieved as a means of teaching Eddie responsibility. Atwater reluctantly accepted this proposal as a way of promoting good neighborliness. However, I refused this proposal because it meant that Atwater would have to incur additional cost in order to restore his swimming pool to its usual state, or will have to wait longer (as Eddie may take several months before clearing the amount) before the repair is done. I considered both scenarios as unfair and unjust to Atwater in as much as he is doing it for the sake of “good neighborliness”. Therefore, I urged Skillen to consider paying up the agreed amount within the shortest time possible so as not to inconvenience Atwater, as well as avoiding making him incur extra cost. He disputed my opinion by arguing that it denies them a means of teaching Eddie responsibility. I convinced him there are various ways of teaching Eddie responsibility and he should explore them. He found sense in my sentiments and agreed to undertake that. Both parties were now satisfied with the outcome and agreed to meet their ends of bargain and foster good neighborliness between them. I thanked everyone for their being patient, listening, and investment of information and time towards the process. The mediation closed. Lessons Learned That Will Be Helpful For the Future Admittedly, the mediation process that I was involved was challenging but very insightful and exciting as well. Whereas I had expected such a challenging situation, I had not quite expected that it will be as fruitful as it was. Being one of my initial mediation processes in quite a formal setting, it was an important platform to establish my experience in the field; it provided me with the framework in which most of my future processes will be based on. Through this process, I learned that composure, confidence, desirable decorum, and open-mindedness are the most critical factors in facilitating effective mediation process. These factors are in addition to the already laid down principles and ethics of mediation. Notwithstanding, I learned important lessons that will be very helpful going into the future. Firstly, I learned that adhering to the principles and ethics of mediation process is very critical if one has to achieve effective mediation process. Failure to strictly adhere to all of these principles could have detrimental effects on the process thereby yielding unintended outcomes. I can attribute the success of this process to the fact I strictly adhered to these principles. Secondly, I learned that there is need to include written or signed documents in the process especially regarding the outcome. I did not engage the parties in the dispute to signing any written document to commit themselves to the terms agreed. Even though implied agreement can still work as in the case that I handled, it is advisable that the parties agree in writing to meet their terms as agreed (Wall and Dunne 230). This is particularly important for enforcement as written agreements are legally binding and can be used to force one party to comply with the agreed terms if he or she fails to do so within the stipulated period of time. Also, it can be important if the mediation process outcomes are not complied with and there is need to engage other means of dispute resolution such as legal proceedings in court. Besides, the fact that the parties worked in the same firm prompted me to prepare myself to different types of disputes where mediation may be applicable, these areas include: workplace, family, commercial, and public disputes among others. Moreover, I learned that it is important as a mediator to consider the relationship between the parties after the settlement. Although it occurred to me that I had considered post-settlement period in this case, it was important to emphasize the state of such relationship after the settlement especially in cases that involve very close people such as family members or neighbors. Besides, I can say that I was fortunate to have parties that seemed to be very understanding and who seemed to consider the consequences of the mediation process outcome. However, such cases may not occur often in and there is need to explore other steps if the parties do not seem to be understanding or if no agreement is reached at all. I have learned that prior to starting mediation, I should be having alternatives for eventuality that no agreement is reached at all or parties seem to have very disparate views regarding the situation at hand and harmonizing their view to reach a common ground look far-fetched (Goodman 147). Works Cited Frenkel, Douglas, and James Stark. The Practice of Mediation: A Video-Integrated Text. Austin: Wolters Kluwer Law & Business, 2008. Print. Goodman, Allan. Basic Skills for the New Mediator. Solomon Publications, 2004. Print. Moore, Christopher. The Mediation Process: Practical Strategies for Resolving Conflict. Jossey- Bass, 2003. Wall, James and Dunne, Timothy. Mediation Research: A Current Review. Negotiation Journal, 28(2), (2012):217-244 Read More