Impact of the Style of the Mediator on the Parties to Achieve Consensus - Coursework Example

How Does the Style of the Mediator Influence the Parties to Achieve Consensus? Name: Professor: Course: Date: How Does the Style of the Mediator Influence the Parties to Achieve Consensus? The use of mediation approach in conflict resolution continues to increase. It is widely being used to settle a wide range of disputes, including political, legal, business, and family conflicts. Its success and effectiveness in looking for lasting solutions to disputes has greatly boosted its popularity throughout the world. Consequently, scholars have intensified research in this field, and continue to pay increased attention on how to improve the process. Mediator refers to the third party to a conflict, who main role entails facilitating free communication between the parties involved, by helping them focus on the real issues at hand. Unlike Arbitrator, the mediator does not make a decision for the disputants, but concentrates in identifying the causes of conflict, defining the dispute by highlighting the key issues for deliberation, and facilitating a common ground for negotiation. The mediator, therefore, is a key determinant of whether or not the two parties will achieve a consensus. The success of a mediation process lies on the willingness of the parties to participate in the process. In addition, the approach used in the mediation process has indisputable influence on the outcome of the whole process. This article explores how the style used by the mediator can influence the parties to reach a consensus, with emphasis on the strategies and tactics employed and how they enhance or diminish the prospect of the process. My claim is that the mediator must employ a confidence building approach in order to bring the disputants to a common and neutral ground for negotiation process. The disputants must have confidence in the process itself and should be willing to compromise their grounds in order to reach agreements mutually created, and therefore, binding. The styles and approaches used vary considerably with the model of mediation employed. The style in which the mediator introduces the subject of discussion as the initial step remains a significant strategy towards effective mediation. This is because the opening statement not only educates the parties about the mediation process, its goals, and general game plan, but it also sets the tone for the session (McClellan 2007). Even though the statement’s content and scope may be subject to personal style, the mediator should use it to establish his or her credibility with the disputants with an aim of winning their trust. This will help the disputants to believe in the mediator and the outcomes of the process. The mediator’s impartiality cannot be overemphasized. A mediator should avoid playing detective, but should let both parties share their perceptions and desires one on one (Latifi 2009). Having preconceived opinion over the dispute would undermine and compromise mediator’s objectivity. Since the mediator is a neutral party to the dispute, his biasness in any way is undoubtedly against the spirit and principles of mediation. As such, Silveira (2007) argues that the mediator should, at all time, remain impartial during and after mediation, and should not impose a particular settlement on the parties. Some mediation initiatives in the past may not have yielded consensus due to mediator’s biased position. Whichever dispute at hand, the mediator should consider disclosing any possible conflict of interest or factor that may lead one of the parties in the dispute develop a feeling of bias or favoritism (Anders 2004). Mediation process must have rules to protect the parties and uphold confidentiality. It’s up to the mediator to facilitate setting of rules to guide mediation process. This is because the dispute might involve serious incidences where confidentiality may be of essence. For example, in serious political disputes that may have involved mass killings, confidentiality remains essential in helping the parties achieve and honor a lasting solution. To ensure free communication, all the matters discussed in mediation process remains private and cannot be used to incriminate the said party in a court of law. If the parties do not resolve their dispute in mediation and the case moves forward to courts of law, neither party can use the information revealed in the mediation process to their advantage in court (Twomey 2006). Therefore, the mediator must facilitate setting these guidelines, otherwise, the parties, with strong mistrust in each other, will not be able to give the information critical to finding a lasting solution for fear of incrimination. For example, in a conflict involving employee and an employer, setting ground rules eliminates bullying and intimidation. Disputants must recognize that they are legally bound by these rules and that mutual respect is an obligation to both sides. The key to effective mediation also lies in concise understanding and critical analysis of the problem. The mediator must do a proper assessment of the dispute by listening to each of the parties involved in order to get the side of their story and develop effective and feasible solutions. The assessment and analysis should provide a contextualized understanding of the conflict and answer questions of strategy like at what level to engage, how to gain leverage, or on whom to focus more efforts on (Smith & Smock 2008, p. 9). At times, the mediator may not necessarily get the required information as the conflicting parties regard each other with animosity and mistrust, and obviously consider their own positions as right and non-negotiable. In other instances, depending on the nature of the conflict, the parties can get emotional and do a lot of venting. Under such circumstances, the mediator should not express judgments or criticisms, but should try to get the parties to focus on what they want and why they want it (Grappo 2000). The mediator must employ tactics that offset their mistrusts and help each party understand the other’s position. It is after proper understanding of the conflict when mediation process begins and success of the process lies at this stage. If there is no proper understanding, the process is destined for failure. For example, the failure of the Darfur Peace Agreement in 2006 was partly because of failure of the mediators to recognize the complexity of the factionalism within the rebel movements (Smith & Smock 2008, p. 12). Had the mediators been well informed, probably the process could have yielded better results. When all information is gathered, the style to be used largely depends on the nature of the conflict. In facilitative style, the mediator is always in less control of the options reached and leaves most of the evaluation of the conflict in the hands of the disputants. Erickson and McKnight (2001) believe that such strategy has the greatest influence on increasing the prospects for reducing tension among disputing parties. This is because the parties solely look for their own solution to the conflict without a third party’s coercion. The mediator’s role is reduced to guiding and helping the parties to focus on the dispute by clearly analyzing the motives and interests behind the positions taken by the parties to help them reach mutually agreeable resolution. In other words, this style is consistent with the conceptualist approach to defining mediation and finding concrete resolution (Strasser & Randolph 2004). In addition, the mediator is free to ask any compelling question with aim of validating their arguments and further analyzing options available for resolution. One distinctive feature in this style of mediation is that while the mediator is in charge of the process, its outcome rests in the hands of the conflicting parties. This undoubtedly bars mediators from giving their considered opinions or predicting the outcome of the process, in case the matter goes to judicial proceedings. Another commonly used style used in mediation process regards therapeutic approach, which entails trying to understand the underlying causes of a dispute, its history, the impacts it inflicted on the parties, with the aim of improving their relationships. Therapeutic mediators are mostly involved in settling family conflicts where emotional pain is evident, such as in divorce and separation conflicts. This style is effective in that it enables the children to easily cope with their parents’ divorce or separation and helps heal their emotional wounds. It is worth noting that this approach may take longer time than expected in the case of family conflicts, as it requires an in-depth understanding of the nature and history of the impasse, the personality styles, and communication patterns between the parties (Strasser & Randolph 2004). It is therefore an effective mediation style and chances of seeking further solutions to the matter in courts are highly minimized. Evaluative style is the most effective model to use in an attempt to reach a settlement according to the established legal systems. It is modeled according to the rights and entitlements of the parties involved, rather than their interests, needs, or considered positions. In fact, the evaluative mediator critically analyses the dispute taking into account the weaknesses of their cases and views and predicts the possible outcome should the case be taken to court for resolution (Erickson & McKnight 2001). In order to reach a profound decision and achieve consensus, the mediator may consider meeting each party separately to assist the parties evaluate their positions and their legal implications. Unlike other styles, the mediator’s opinions are very instrumental to helping the parties reach a lasting resolution. A mediator taking this approach must therefore, be well acquainted with the legal and judicial system to avoid contradictory opinions that may be detrimental to the dispute settlement. However, the mediator must be careful not to openly give legal advice to either party against the other as this might harden their positions, which may impede the process of reaching to a lasting solution (Katz 2007). Mediators on commercial conflict may use the settlement approach to establish a ground for conflict resolution. According to Twomey (2006), here the focus is on positions rather than interests. The mediator’s role is to determine the disputant’s positions in an effort to help them reach a compromise. It is a “take and give situation” and its success mainly lies on the parties’ willingness to compromise their interests and needs. This approach however, can be easily manipulated because the initial positions taken by the disputants greatly influence the outcome of the mediation process. Critical analyses of these styles reveal that they are not so distinct from each other and most mediation initiatives today do not conform exactly to one type, but employ features of more than one style to drive the parties to a consensus. Therefore, the nature and stage of a dispute influences the kind of approach applied by a mediator. If mediation occurs after the first hearing in a court, then the legal rights of the parties have been addressed and it may be difficult to dissociate rights from interests, hence it is up to the mediator to pay attention to the disputants’ interests rather than their perceived legal positions (Doherty & Guyler 2008). Thus, right choice and use of a mediation style remains crucial to the success of the mediation exercise. For example, a facilitative style can be used in joint sessions where both parties are represented, while evaluative and settlement approach can be used in private sessions. The advisory role played by the mediator may result to controversy and raise ethical implications. The mediator may realize that one side to the dispute is misinformed or misadvised, implying that the mediator should discuss the matters surrounding the dispute with every party, separately, in order to achieve consensus. In addition, whichever style used, the mediator should be in position to break a new ground. While finding a common ground between both parties is important, it can further be reinforced by looking for a new way to solve the dispute (Latifi 2009). This is because each party has stakes and positions, therefore bridging the gap by breaking a new ground favorable to both parties can further facilitate reaching a compromise. The effectiveness of the mediation style continues to stir and attract much debate. More and more studies are being carried out to measure the effectiveness of the style and the implication the models have in achieving consensus. Proponents of facilitative and therapeutic styles praise them for empowering parties to reach and honor long lasting resolutions (Doherty & Guyler 2008). The mediator must also take into consideration the timeframe of the process and the urgency of reaching consensus. Both parties should also understand the role to be played by the mediator throughout mediation and after the process of mediation. In conclusion, there are many styles in mediation process such as facilitative, evaluative, therapeutic and settlement. Since each style has its usefulness and limitations, the mediator may choose to use more than one style to drive the two parties to a consensus. The styles to be used also vary considerably with the nature of dispute. For example, a mediator may choose therapeutic style to help resolve a divorce dispute, while a commercial mediator may find both settlement and evaluative useful. Whichever way, the mediator must employ a confidence building approach in order to bring the disputants to mutually created agreements. It is only through such an agreement that the mediator will have achieved his or her goal of helping the conflicting parties to achieve and honor lasting solution. References Anders, TM 2005, ‘Taming intractable conflicts: mediation in the hardest cases’, International Journal on World Peace, vol. 22, no. 3, pp. 87-94. Doherty, N & Guyler, M 2008, The essential guide to workplace mediation & conflict resolution, Kogan Page, London. Erickson, SK & McKnight, MS 2001, The practitioner’s guide to mediation: a client-centered approach, John Wiley & Sons, New York, NY. Grappo, D 2000, ‘Questions litigators ask about mediation’, Journal of Dispute Resolution, vol. 55, no. 2, pp. 32-38. Katz, E 2007, ‘Family therapy perspective on mediation’, Journal of Family Process, vol. 46, no. 1, pp. 93-105. McClellan, JL 2007, ‘Marrying positive psychology to mediation: using appreciative inquiry and solution-focused counseling to improve the process’, Journal of Dispute Resolution, vol. 62, no. 4, pp. 29-35. Silveira, MA 2007, ‘Impartiality Vs. substantive neutrality: is the mediator authorized to provide legal advice’, Journal of Dispute Resolution, vol. 62, no. 1, pp. 26-40. Smith, AL & Smock, DR 2008, Managing a mediation process: United States Institute of Peace, Washington, DC. Strasser, F & Randolph, P 2004, Mediation: a psychological insight into conflict resolution, Cromwell, New York. Twomey, RF 2006, ‘Mediation and its merits as an alternative method of employer-employee dispute’, Journal of Competition Forum, vol. 4, no. 2, pp. 414-426. Latifi, L 2009, ‘Mediate a dispute: the right way to deal with drama’, Psychology Today, January 2009, p. 26 Read More