Mediation: Definition, Features, and Process PDF
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This document provides an overview of mediation, including its definition, features, and process. It focuses on mediation as a method of resolving conflicts between parties without resorting to litigation. Key elements of the process and important communication skills are discussed.
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CHAPTER SIX: MEDIATION 6.1. Definition and Features of Mediation/Conciliation Mediation is a voluntary, party-centered and structured negotiation process where a neutral third party assists/help the parties in amicably/politely resolving their d...
CHAPTER SIX: MEDIATION 6.1. Definition and Features of Mediation/Conciliation Mediation is a voluntary, party-centered and structured negotiation process where a neutral third party assists/help the parties in amicably/politely resolving their dispute by using specialized communication and negotiation techniques. Mediation is one element of alternative dispute resolution. Mediation means the facilitation of negotiation process. Mediation and conciliation are alternative dispute resolution (ADR) processes aimed at resolving conflicts between parties without resorting/option to litigation/proceeding. o The some differences between mediation and arbitration Mediation is a process where a mediator guides the parties in determining the resolution of a case, rather than making decisions on the matter. Mediation is a dispute resolution process where the mediator does not determine the value of claims and there is no penalty for failure. Mediation is a quicker, less expensive alternative to litigation, allowing parties to work out their own solutions privately. o Features of Mediation/Conciliation The followings points are regarded as the basic features of mediation: 1. Voluntary Process: Participation is typically voluntary, meaning that parties choose to engage in mediation or conciliation and can withdraw at any time. 2. Neutral Third Party: A mediator or conciliator is an impartial facilitator who does not have decision-making authority and works to assist parties in finding common ground. 3. Confidentiality: The discussions during mediation or conciliation are usually confidential, encouraging open communication without fear of legal repercussions. 6.2. The Process of Mediation Mediation is a dynamic process in which the mediator assists the parties to negotiate a settlement for resolving their dispute. In doing so, the mediator uses the four functional stages of mediation: (i) Introduction and Opening Statement (ii) Joint Session (iii) Separate Session and (iv) Closing Stage 1: Introduction and Opening Statement A. Introduction Introduction: The mediator introduces themselves and explains the mediation process, including rules and confidentiality. B. The Mediator's Opening Statement Opening Statement is Setting Ground Rules: Establishing guidelines for respectful communication and behavior during the sessions. The mediator explains the mediation concept, process, stages, roles, advocates, parties, advantages, and ground rules to parties and their counsel in a clear and understandable manner. The mediator should emphasize the importance of voluntary, self-determinative, non- adjudicatory, and confidential, good-faith participation, time-bound, flexible, direct, party- centered, neutrality, finality, dispute resolution, and the necessity of separate sessions. Stage 2: Joint Session o “A Joint session” means typically refers to a meeting or gathering where members from two or more groups come together to discuss or collaborate on specific topics. o The joint sessions flows the following procedure: First, the plaintiff/petitioner should be permitted to explain or state his/her case/claim in his/her own words. Second, counsel would thereafter present the case and state the legal issues involved in the case. Third, defendant/ respondent would thereafter explain his/her case/claim in his/ her own words. Fourth, counsel for defendant/respondent would present the case and state the legal issues involved in the case. Stage 3: Separate Session/ Caucus o A "Separate Session" refers to a meeting or gathering where a particular group or subset of an organization convenes independently from other groups. o Encourage parties to generate options and find terms that are mutually acceptable Procedure: (i) Re – Affirming Confidentiality, (ii) Gathering Further Information (iii) Reality - Testing a. Re – Affirming Confidentiality During the separate session each of the parties and his counsel would talk to the mediator in confidence. The mediator should begin by re-affirming the confidential nature of the process. b. Gathering Further Information The mediator can gather more detailed information and address the issues raised during the joint session in a separate session. c. Reality - Testing "Reality Testing" is a psychological concept that refers to the process of assessing the accuracy of one's perceptions, thoughts, and beliefs about the external world. The mediator can then, in order to move the process forward, engage in REALITY- TESTING. Reality-testing may involve any or all of the following: Reality-testing is a comprehensive analysis of a claim, defense, perspective, legal basis, parties' positions, costs, witness appearance, credibility, trial chances, and potential litigation outcomes. Techniques of Reality-Testing Reality-Testing is often done in the separate session by: 1. Asking effective questions, 2. Discussing the strengths and weaknesses of the respective cases of the parties, without breach of confidentiality, and 3. Considering the consequences of any failure to reach an agreement (BATNA/WATNA / MLATNA analysis). (BATNA - Best Alternative to Negotiated Agreement: WATNA - Worst Alternative to Negotiated Agreement: MLATNA -Most Likely Alternative to Negotiated Agreement.) (I) Asking Effective Questions: The mediator may ask questions to gather information, clarify facts, or alter parties' perceptions of the case and their expectations/opportunity. Examples of effective questions: 1. Open-Ended Questions like 'Tell me more about the circumstances leading up to the signing of the contract'. 2. Closed Questions, which are specific, concrete and which bring out specific information. 3. Questions That Bring Out Facts: 'Tell me about the background of this matter'. 4. Questions That Bring Out Positions: 'What are your legal claims?' (II) Discussing the Strengths and Weaknesses of the Respective Cases of the Parties: The mediator may inquire about the parties' and counsel's perspectives on their case, including potential judge views, evidence weaknesses, court timelines, and legal expenses. (III) Considering the Consequences of Any Failure to Reach an Agreement (BATNA/WATNA /MLATNA ANALYSIS), (BATNA - Best Alternative to Negotiated Agreement: WATNA - Worst Alternative to Negotiated Agreement: MLATNA -Most Likely Alternative to Negotiated Agreement.) Reality-testing is a negotiation technique that involves considering different alternatives to a settlement, such as the best, worst/bad, and most likely outcomes. BATNA/WATNA/MLATNA analysis may be used if parties struggle with negotiation or adamant stands. It helps parties understand their case, give up rigid positions, identify interests, and focus on problem-solving. In, BATNA/WATNA/MLATNA analysis, the parties are then encouraged to explore several creative options for settlement by using the following techniques. These are: Brain Storming, Sub- Sessions and Exchange of Offers i. Brain Storming Brain Storming is a technique used to generate options for agreement. There are two stages to the brain storming process: 1. Creating options: - Parties are encouraged to freely create possible options for agreement. 2. Evaluating options: - After inventing options the next stage is to evaluate each of the options generated. In general, brainstorming involves understanding the parties' acceptable and unacceptable options, gaining insight into their underlying interests, and finding mutually acceptable terms through lateral thinking rather than linear thinking. 3. Sub- Sessions; A separate session is typically held with all members of one side of a dispute, including their advocates and other party members. 4. Exchange of Offers; the mediator carries the options/offers generated by the parties from one side to the other. Stage 4: Closing Where there is a settlement; once the parties have agreed upon the terms of settlement, the parties and their advocates re-assemble and the mediator ensures that the following steps are taken: These are mediator confirms settlement terms orally, reduces them to writing, signs them by all parties and legal representatives, certifying their signature, furnishes a copy, sends the original signed agreement to the referral court, and thanks the parties for their participation and congratulates them on reaching a settlement. The written agreement should be concise, clear, and executable, using positive language and avoiding legal jargon. 6.3. Communication in Mediation Communication is the process of exchanging information, ideas, thoughts, or feelings between individuals or groups. Effective communication is crucial in various human contexts, such as personal relationships, business, education, and conflict resolution, as it enhances/develops understanding, builds trust, and promotes collaboration/teamwork. Communication is the core of mediation. Communication is a process of information transmission. Effective communication is crucial in mediation, as it influences conflict resolution processes by facilitating understanding, collaboration, and guiding parties towards a mutually acceptable agreement. The intention of communication is to convey/transmit a message. Understanding the various purposes of communication in personal, professional, and social contexts can enhance/increase interactions/contacts and foster stronger relationships. The purpose of communication could be any or all of the following: These are Building relations, Expressing Emotions, Persuasion, Problem Solving, Facilitating Decision-Making, Cultural Transmission, Education and Learning, Social Interaction, Feedback and Improvement, and Communication serves multiple purposes,, 1. Building relations: Communication is crucial for establishing and maintaining relationships. 2. Expressing Emotions: Communication allows individuals to express their feelings and emotions, facilitating emotional connections. 3. Persuasion: Communication can be used to persuade or influence others. 4. Problem Solving: Through dialogue and discussion, communication helps identify issues, and brainstorm solutions. 5. Facilitating Decision-Making: Effective communication provides the necessary information and perspectives for individuals and groups to make informed decisions collectively. 6. Cultural Transmission: Communication plays a vital role in transmitting cultural values, beliefs, and norms from one generation to another, helping preserve identity and heritage. Key Elements of Communication or Communication involving Sender: The individual or entity that initiates the communication by conveying a message. Message: The information or content being communicated, which can be verbal, non-verbal, written, or visual. Medium: The channel through which the message is transmitted, such as spoken words, emails, text messages, or body language. Receiver: The individual or group who receives and interprets the message. Feedback: The response from the receiver back to the sender, indicating whether the message was understood and how it was received. Context: The environment or situation in which the communication occurs, influencing how messages are sent and received. Types of Communication 1. Verbal Communication: Involves spoken or written words. It includes face-to-face conversations, phone calls, and written correspondence. 2. Non-Verbal Communication: Consists of body language, facial expressions, gestures, and tone of voice, often conveying more than words alone. 3. Visual Communication: Uses visual aids such as graphs, charts, images, and videos to convey information effectively. 4. Interpersonal Communication: Occurs between two or more individuals and is essential for building relationships and resolving conflicts. 5. Group Communication: Involves interactions within groups, such as teams or organizations, often requiring coordination and collaboration. Tips for Effective Communication 1. Active Listening: Pay attention to the speaker, show interest, and provide feedback to demonstrate understanding. 2. Clarity and Conciseness: Use clear and straightforward language to convey your message without ambiguity. 3. Empathy: Try to understand the feelings and perspectives of others to foster connection and trust. 4. Adjusting Communication Styles: Be aware of your audience and adapt your communication style to suit their preferences and needs. 5. Non-Verbal Cues: Be mindful of body language and facial expressions, as they can significantly impact the message being conveyed. 6. Feedback: Encourage and provide constructive feedback to ensure messages are understood and to improve future communication. Barriers to Effective Communication 1. Language Differences: Variations in language can lead to misunderstandings or misinterpretations. 2. Cultural Differences: Diverse cultural backgrounds can influence communication styles, leading to potential conflicts. 3. Emotional Barriers: Personal feelings such as anger, anxiety, or sadness can hinder effective communication. 4. Physical Barriers: Environmental factors, such as noise or distance, can disrupt the communication process. 5. Perceptual Barriers: Differences in perception and interpretation can lead to misunderstandings among individuals. 6.3.1. Communication Skills in Mediation Effective communication skills are essential for mediators to facilitate discussions and guide parties toward resolution. Some key communication skills that are particularly important in the mediation process: These are Active Listening, Empathy, Clarity and Conciseness, Neutrality, Questioning Techniques, and Non-Verbal Communication. 1. Active Listening: Fully concentrating, understanding, responding, and remembering what is being said. 2. Empathy: The ability to understand and share the feelings of others. 3. Clarity and Conciseness: The ability to express thoughts clearly and directly. 4. Neutrality: Remaining impartial and unbiased throughout the mediation process. 5. Questioning Techniques: Using open-ended and probing questions to elicit deeper responses. 6. Non-Verbal Communication: The use of body language, facial expressions, and tone of voice. Following are the commonly used techniques of active listening by the mediator: Summarizing: This is a communication technique where the mediator outlines the main points made by a speaker. The summary must be accurate, complete and worded neutrally. Reflecting: Reflecting is a communication technique used by a mediator to confirm they have heard and understood the feelings and emotions expressed by a speaker. Re-framing: Re-framing is a communication technique used by the mediator to help the parties move from Positions to Interests and thereafter, to problem solving and possible solutions. Acknowledging: In acknowledgment the mediator verbally recognizes what the speaker has said without agreeing or disagreeing. Deferring: A specialized communication technique where the mediator postpones the discussion of a topic until later. Encouraging: The mediator can encourage parties when they need reassurance, support or help in communicating. Barriers to Active Listening: 1. Distractions: -- They may be external or internal. The sources of external distractions (noise/sound, discomfort/pain, interruptions). The sources of internal distractions (tiredness, boredom, preoccupation, anxiety, impatience.) 2. Inadequate time:- There should be sufficient time to facilitate attentive and patient listening. 3. Pre-judging:- A mediator should not prejudge the parties and their attitude, motive or intention. 4. Blaming/guilty: A mediator should not assign responsibility to any party for what has happened. 5. Absent Mindedness: - The mediator should not be half-listening or inattentive/negligent. 6. Role Confusion: - The mediator should not assume the role of advisor or counselor or adjudicator. 7. Arguing / imposing own views: - The mediator should not argue with the parties or try to impose his own views on them.