Mediation as a Consumers Guide to Peacemaking - Research Paper Example

Mediation – A Critical Essay Patience has been cited as one of the single most important quality that both the mediator and parties to the mediation can bring to the process.1 Ideally, it is patience that enables the mediator and the parties to let the entire mediation process evolve to a point where the parties can communicate effectively with each other and hence negotiate for an amicable deal. As indicated by Ross, parties in a mediation process (with the exception of the mediator), often commence the mediation with extreme negotiating positions.2 As would be expected, the plaintiff makes demands, which the defendant feels are too much, hence creating a settlement gap. To shrink such a gap, and hence arrive at a settlement that is agreeable to both parties, the mediator must have patience, and inspire the same in addition to commitment from the mediating parties.3 Yet, despite this knowledge, this writer found it relatively hard to be patient with the mediating parties. Specifically, one party’s (named party AB hereunder) apparent lack of active listening abilities was all too obvious. In this writer’s opinion, the cited party enjoyed speaking and being heard, but was not very accommodating to listening what the other party (Party CD hereunder) said. It dawned on the writer that the frequent interruption by AB whenever party CD was speaking would probably compromise the outcomes of the mediation because: 1) the mediator had to keep intervening and urging AB to allow CD talk; 2) sometimes the mediator could just let AB get away with cutting CD’s comments short; and 3) whatever action the mediator took (whether he chose to intervene or not) would be interpreted differently by the two parties. For example, the mediator’s intervention to discontinue AB from cutting CD’s comments short could be interpreted by AB as a bias towards one party, while letting AB get away with some of the interruptions when CD was talking could be interpreted by CD as being too lenient on AB. CD’s position did not help matters either because as the defendant, the party allowed the claimant to ‘jump in’ with comments, thereby disrupting the mediator’s capacity to grasp the positions, needs, personalities and goals of each party fast. As the neutral party to the dispute, this writer found it easier to identify defendant CD as the weaker party, while party AB appeared like the stronger party. On reflection however, the author realised that giving such labels as ‘weaker’ or ‘stronger’ to the parties would compromise his position as an objective, non-partisan mediator. As indicated by Stringer and Lusardo, information sharing and identification of issues that disputants have is the second step in effective mediation after opening the process.4 The two authors specifically caution mediators about the importance of ensuring that neither of the disputant parties feels as if the mediator ‘has given the other party undue advantage’.5 As inferred above, the lack of patience on the mediator’s part would not only jeopardise his impartial standing in the mediation process, but would also cause distrust from one or all the parties towards him and each other. To foster a trusting relationship with both parties and between the two parties so as to foster an environment where speedy and efficient dispute resolution could be found, this author realised the need to be patient with each party, and the need to encourage each party to actively participate in the mediation process while respecting the other party’s right to equally actively participate in the same.6 It also dawned on this writer that without patience, it would be hard to attain fairness. According to Kent, ‘the first external factor of fairness is a simple judgement of whether agreement was reached’.7 In other words, the mediation process can only be fair if it brings both parties and their respective ideas together for purposes of attaining an agreement. Without patience, the mediator could only manage to bring the parties together, but this would be soon jeopardised by the absence of patience, either by the mediator, or from one of the parties. In other words, without the mediator being tolerant towards each party, and without parties being tolerant to each other, no agreement can be reached, and hence no sense of fairness can be felt. In most cases, the disputants enter the mediation process with each side stressed, hostile, anxious, and probably angry. Each side has its own opinions regarding what is right and wrong, and incidentally, all sides often think that the other side owes them. For a compromise agreement to be attained, each side must be willing to listen to the other’s arguments and propositions, and must also be willing to make concessions where necessary. In mediation, no one really wins it all; rather, the mediation process is usually a ‘give-and-take’ process, where a compromise agreement that the parties can live with is sought.8 Just like negotiating a deal, the mediation process requires the parties (and the mediator) to acknowledge that a different approach to settling a disagreement would probably cost more and last longer – therefore requiring even more patience. Unfortunately, and in litigation specifically, the disputing parties do not have the room to agree on issues and hence settle the disagreement amicably. Even when the litigation is finally settled, a losing side may still appeal, in which case the process would take even longer. In conclusion, it is worth reiterating that patience, especially with regard to the mediator during the mediation process, is an invaluable quality. Since the mediator is trusted to facilitate the disputing parties to talk and hence generate a mutually acceptable deal, it is only important that he/she lets the process run its full course, and intervene only when necessary 2. In his writing titled ‘Welcome to mediation – a consumer’s guide to peacemaking’, Ross has addressed patience as an essential component in successful mediation.9 Although the writer has dedicated just two and a half pages to the subject, he has categorically indicated that mediators need not only to be patient, but also to foster patience among disputing parties because ‘only the mediator knows what is evolving in each private caucus’ and is hence best placed to gauge whether resolutions to the conflict can be found.10 The writer further argues that the mediator’s goal should remaining offering help to the disputing party, and as such, should be willing to encourage the disputing parties to give the mediation process their support and time. Reflecting on Ross’s writings now, this author realises that an impatient mediator consciously or unconsciously has the urge to end the process, and cannot hence facilitate the environment the parties need to make resolutions that will be satisfying to all. A different article by John Lande titled ‘Doing the best mediation you can’ further addresses the issue of patience albeit in a small section of the article.11 Lande combines patience and persistence as the critical aspects that disputing parties surveyed in his research hoped the mediators could have. According to the article, participants in a mediating process are dissatisfied when the mediators merely act as messengers or observers, or when the mediators ‘give up too easily when negotiations become difficult’.12 If Lande’s research findings are to be believed, the respondents in the research indicated that it is during the tough negotiating moments that they need the mediators the most, thus meaning that it is during such times that their patience is called for the most.13 In the article, the mediator is projected as the party that will push the disputing parties to reach an agreement, especially if the negotiations end before an amicable resolution is attained, and, if there is still hope of attaining one.14 From Lande’s article, this author recognises that much as the disputing parties may give up and decide that they will not push forward with the negotiations, the mediator should be patient and discerning enough to know if a resolution is attainable, and if so, prompt each of the mediating parties towards attaining the same. In the article titled ‘mediation and the medical malpractice case’, Joseph Ricchiuti has also addressed the patience issue and specifically states that ‘patience is a virtue’.15 Like other articles featured herein, Ricchiuti has dedicated a small but significant part of article to addressing the patience issue, but he nevertheless manages to underscores the importance of the virtue in mediation. The author starts by stating that ‘achieving a settlement in mediation takes time’.16 In other words, Ricchiuti is telling readers that any one who needs to get the process up and over with, is probably the wrong person to be a mediator. He further argues that since a mediator is unlike judicial officers who need to finish with one case in order to listen to subsequent ones, he/she should not be in a rush to end the process.17 The writer also emphasises the importance of counsel (or lawyers) to advise their clients about the lengthy nature of the mediation process, and the importance of patience from each party.18 On reflecting on Ricchiuti’s article, this writer gets the impression that apart from being a virtue as Ricchiuti so aptly puts it, patience calls for flexibility. Specifically, this author is inclined to interpret Ricchiuti’s article as suggesting that neither the mediator nor the parties should start the mediation process with set deadlines. The flexibility may include simple things such as not scheduling meetings that may pressurise the mediator to end the process in a specific time, or more abstract things such as how many days or weeks the mediation is supposed to end. Considering the interactions of parties AB and CD in the above described scenario, this writer believes that Ricchiuti has indicated how best to handle such parties, by stating that each party needs to have their turn in a caucus with the mediator.19 Each turn with a party should not have time constraints, and this again underlines the importance of patience.20 In conclusion, it is worth noting that while patience may appear like a simple consideration in mediation, it is its presence or lack thereof among the mediator and each of the mediating parties that determines whether a solution to the disagreement among the parties will be attained. Additionally, it affects other factors in the mediating process such as the impartiality of the mediator (he/she needs to be patient with all parties and avoid any biases) and the duration of the mediation process. The latter is especially true because a patient mediator will let the mediation process run its full length and will encourage negotiations to continue for as long as there is hope of a solution. Read More