Influence of the Mediation Style in Achieving Consensus - Coursework Example

Name : xxxxxxxxxxx Institution : xxxxxxxxxxx Course : xxxxxxxxxxx Title : Influence of the mediation style in achieving consensus Tutor : xxxxxxxxxxx @2010 How does the style of the mediator influence the parties to achieve consensus? Introduction First the mediator who handled the entire negotiation process came from WIPO Mediation Centre. The mediator also has a track record in settling case and had explicit expertise in patents and the applicable technology and therefore he had the mediation process and legal expertise that ensured that the parties had a realistic view of likely result of their case. Secondly, the parties involved in the negotiation process had a disagreement regarding patent innovation and resulting damages. The parties were a consulting firm and a major manufacturing industry. Finally, the consensus was accomplished by the mediator using certain tools that are elaborated in Fells, 2009 and this included listening to both parties, doing sufficient research, effective negotiating as well as avoiding being empathetic with any party. By the mediator using these tools, the parties managed to bring conclude a patent licence and to reach a consensus regarding financial term. In this paper, I explore the style the mediator used in bringing the negotiations to an agreement and how the mediator’s mediating style affected the strategic mediation in addition to how the style maximized the overall effectives of the mediation process. The mediator The mediator assigned the parties their own private rooms which they regarded as their “home base” for the mediation and there was also a separate “joint session” room. The mediator greeted the parties at the start of the mediation day and this was to make sure that they settled in their allocated rooms and after which they met within the “joint session room”. During the opening session, where both parties were present, the mediator offered them a chance to present their case to the other party and incidentally to the mediator too. The opening session time was limited though since this was not the adversarial hearing and the mediator encouraged the parties to explain and talk about their positions instead of presenting argument and rebuttal (Laustsen 2009). The mediator requested the parties to go back into their own rooms and afterwards met with each party in turn and invited the parties back for joint session regularly. Meanwhile, the mediator moved between the parties, discussing their cases with them. In some instances, the mediator transmitted information between the parties but this was when it was essentially necessary. Everything that was discussed between the party and the mediator was kept private (Fells 2009). During the two days, the mediator held numerous caucuses singly with every party and this included its counsel. The caucus sittings were meant for canvassing every party’s options to resolution, the comparative strengths and weaknesses of their lawful positions, their valid interests that would require to be fulfilled through any agreements and possible alternatives for settlement. The mediator never offered his own assessment of the parties’ interests and legal positions. As an alternative, the mediator questioned both parties’ lawyers while their clients were there and therefore brought the parties to a fuller approval of the cost and ambiguity of litigating in addition to the strengths and weaknesses of their individual positions without him looking as if he was taking any view (Shapiro 2006). Additionally, the caucuses helped the mediator in appreciating the likelihood that the interests of the parties could be reconciled and that both parties faced internal matters that the other party could help in resolving. For consulting firm, a court triumph would not get new consulting work and could even hold back its business from firms similar to the other party. On the other hand, the manufacturer faced the predicament of either continuing with the exploitation of the technology pending the result, in that way risking even greater damages or experiencing the expense and effort of transforming a less appropriate technology in order to reduce financial exposure (Rogers 2007). Nevertheless, all the parties assumed that the other party was not capable or was not ready to cooperate in the future. All this was based on the information that the mediator collected from the arties confidentially in caucus. As a result, the mediator had to look for a way of enabling and assisting the parties in gaining the same insight without revealing confidential information (Fells 2009). The mediator was effective since he was neutral and impartial and never favored any of the parties and also he did not offer any legal advice to any party. The mediator also did not try to instruct or influence any party regarding if or not it might be within that party’s interests in making or accepting a proposal. The mediator commented on proposals made by one party to that party plainly to ‘reality-test” the legitimacy of the proposal as well as to test if the party had considered the impact of the proposal to the entire negotiation (Ellis 2005). However, the mediator never ‘reality test’ or in any manner knowingly expose the parties’ weaknesses over the joint session. The mediator ensured that everything that was discussed over the mediation was private to both parties and to their advisors as well. The effect was equivalent to “without prejudice” negotiations and hence everything that was discussed between the mediator and the parties was kept confidential and also everything that was discussed during the joint sessions remained in that room. The mediator never decided if any party was right or wrong and never made any kind of ruling or finding. The parties arrived at their own solution through the mediator’s guidance (Donaldson 2007). The key responsibilities of the mediator included impartiality whereby he paid attention to the trend of sympathy that is logically developed between two individuals. The mediator was also independent and this means that he never represented any authority and he also observed neutrality whereby he never influenced the parties’ choice of the solution. Finally, the mediator observed confidentiality and this means that everything that was expressed over the mediation remained private and therefore, the mediator in no way did not and would not testify any aspects presented during mediation he facilitated. Finally, the mediator had the required negotiation skills which kept the parties talking (Sharp 2008). The parties The parties include a consulting firm and a major manufacturer. A technology consulting firm having patents on three continents revealed a patented innovation to a chief manufacturer within the context of a consulting contract. The contract did not transfer or licence any rights to the manufacturer. When the manufacturer commenced on selling products which the consulting firm claimed infringed its patented innovation, the consulting firm threatened to file a suit against the manufacturer for patent infringement within all jurisdictions which it had patents. The parties began negotiating a patent license with the assistance of external professionals but failed to agree regarding the payment as the multimillion dollar damages sought by the consulting company extensively surpassed the amount the manufacturer was ready to pay. In a further attempt to resolve the disagreement, the parties submitted their dispute to mediation (Coltri 2007). The Consensus An opportunity to reach consensus came towards the end of the second day, the time the mediator met with both parties. Up to this time, the parties had been discussing regarding the total sum of damages and royalties as well. At this time, nevertheless, the mediator could ask question which had been designed to focus both director’s attention regarding the way in which every party could assist the other party settle its internal problem. As soon as the parties discovered that their postulations regarding each other were wrong and that they were both ready to cooperate, one party came with a suggestion that the other party accepted in broad terms (Falcao 2010). After this breakthrough, a plenary session was organized, whereby the parties’ lawyers were instructed to draft a document illustrating the fundamental agreement. This initial draft was not intended to bind the parties but to serve as a starting point for further discussion between the parties as well as the mediator. A reviewed version was finally signed at the mediation sitting itself. Afterwards, the parties’ lawyers produced an official agreement whereby the parties executed some weeks later on. Through this mediation process, the parties managed to bring to a close a patent licence and to reach a consensus regarding financial terms. Furthermore, the manufacturer agreed to acknowledge the consulting firm’s technology regarding the licensed products and marketing material and also the consulting firm discarded its infringement allegations. In addition, the parties agreed to end more consulting contracts of a certain yearly value over numerous years (Falcao 2010). The style the mediator was effective in ensuring the parties arrived at an agreement since he structured a process that assisted the parties in reaching a jointly agreeable resolution. The mediator asked questions, validated and normalised the parties’ opinions and searched for interests underneath the positions taken by the parties and therefore helped the parties in finding and analysing alternatives for a solution (Galton, 2007). The mediator ensured that the parties arrived at consensus through the information and understanding as well and he achieved this by predominantly holding mutual sessions with both parties and this was to make the parties hear each party’s opinions. Therefore, the style that the mediator used empowered the parties and assisted the parties in taking responsibility for dispute and finding the solution (Corvette 2006). The mediator was also tenacious during mediation process. This means that the mediator had the skill to break impasse and maintain negotiations in spite of the obstacles that were present and could have hindered finding a solution. The mediator did not give up even though at the beginning the parties were too far apart and finding a resolution seemed difficult. The style the mediator used assisted was essential and vital because it helped in maintaining the parties on track, organising information as well as in memorialization of the agreement and also allowed for an understanding between the parties. Finally, the style that the mediator used was very important in reaching a consensus since it allowed both parties to feel that the entire process was fair and no one was hurt and this prompted the agreement (Friedman 2009). Conclusion The mediation was therefore instrumental in changing an unreceptive situation whereby the parties were making preparation to employ a prolonged and costly multi-jurisdictional litigation into one in which they managed to end the dispute through an agreement that suited the business interests of every party and ensured the profitable utilisation of the technology within the service of those interests. The mediator employed all the tools described by Fells 2009 whereby he instilled trust between him and the parties, listened to both parties’ opinions, and was impartial throughout mediation process among other skills. The parties were assisted in working through their disputes and to finally reach to an agreement. Bibliography Coltri, L., 2007, Conflict Diagnosis and Alternative Dispute Resolution, Prentice Hall Upper Saddle River, NJ. Corvette, B., 2006, Conflict Management: A Practical Guide to Developing Negotiation Strategies, Prentice Hall, Upper Saddle River, NJ. Laustsen, B., 2009, Conflict Transformation and Peace building: Moving From Violence to Sustainable Peace, Routledge, New York. Donaldson, M., 2007, Fearless Negotiating: The Wish, Want, Walk Method to Reaching Agreements That Work, McGraw Hill, New York. Ellis, D., 2005, Conflict Resolution: An Introductory Text, Emond Montgomery, Toronto. Falcao, H., 2010, Value Negotiation: How to Finally Get the Win-Win Right, Pearson Education, New York. Fells, R., 2009, Effective Negotiation: From Research to Results, Cambridge University Press, Cambridge. Friedman, G., 2009, Challenging Conflict: Mediation through Understanding, American Bar, Chicago. Galton, E., 2007, Ripples from Peace Lake: Essays for Mediators and Peacemakers, Victoria, BC, Trafford. Shapiro, D., 2006, Beyond Reason: Using Emotions as You Negotiate, Penguin, New York. Rogers, N., 2007, Dispute Resolution: Negotiation, Mediation, and Other Processes, Aspen Publishers, New York. Sharp, S., 2008, The Art of Managing Everyday Conflict: Understanding Emotions and Power Struggles, Praeger Publishers, Westport. . Read More