May 7, 2017
The Mediation: An Analytical Perspective Concerning Advantages and Limitations
May 7, 2017
Definitions and Types:Mediation is considered a unique system referring to a method of resolving disputes among conflicting parties. In general, it is the role of the mediator who is the third party to provide assistance, to the parties involved, in order to negotiate an agreement.
Mediation refers to a status in which the mediator, who is the third party, tries to help the two disputing parties reach a settlement. Far and away, it is the function of the mediator to set a structure assigning dynamics which make the process go smoothly. Mediation is based on voluntary participation which means that the parties involved choose the mediator who should try to find solutions satisfying all parties and putting an end to their dispute.
To discuss more specifically, it is crucial to realize that mediation facilitates a fast solution which parties can implement regardless of the complexity of the conflict. The mediator provides a confidential area for the parties to share their opinions and answers (Chartered Institute of Personnel and Development (CIPD), 2008). That is achieved by:
- Emphatically examining the feelings and interests of the parties
- Consciously recognizing the parties and providing them a behavioral guidance to pave a way for a positive change
- Emphasizing communication between parties to express their ideas
- Confirming the collaboration between parties and using their passions in a positive approach
- Detached Session which is considered the initial channel communication between the mediator and the parties who meet them privately to listen to each of them about their problem and expectation
- Mutual Session which is considered the first communication which unites the parties summarizing the fundamental points of disputes and timetables for resolving them because this stage involves:
- Identifying the points of disputes to negotiate about
- Setting an agreement paving the way to resolve the issue and provide an agreement statement
After pointing out how mediation is structured and processed, it is apparent that it has benefits and advantages; however, there are many limitations to mediation which we will shed light on.
Concerning benefits, it is notable that peaceful societies prefer to resolve their local disputes by mediation (Erin Johnston, 2009) because the individuals of those societies prefer to involve in the mediation process for:
The voluntarismIt is evident that parties must agree to make mediation and must agree to choose their mediator because if one party is subjected to suppression and forced to the mediation, it is likely that the mediator will fail to resolve their issue so, when the mediator feels that one party is involved coercively, he should reject to take an action.
Mediation is based on privacy which is particularly important for those parties having intimate matters. (Gary, 1997). When negotiating, the mediator checks what one party involved wants to tell and what to reveal to the other party so, there is no risk or harm on any one of the parties involved.
The neutrality and flexibility
The mediator should be objective and unprejudiced so; he does not make judgments concerning who deserves winning the disputes and who commits mistakes. The mediator is supposed that he helps the parties to define their ideas reaching their settlement by their own.
This is an important advantage of mediation because it means that the parties get hands on many outcomes through an adaptable structure. Mediation considers the parties' needs and tries to provide a solution which satisfies all of them. For example, there was a case involving two partners who were different at their age; one of them was 60 years- old aiming at leaving their partnership while the other was a man of 40 aspiring to achieve profits.
Both of them was given a financial offer to sell their business so, according to their previous state of mind, the elder man accepted the offer while the younger refused and the offer could not be successfully attained because there was a disagreement between them! In his pursuit to sustain his purpose, the younger gave the elder an offer to buy his share; however, the elder found the price insufficient so, both of them decided to dissolve their partnership. After evaluating their efforts at work and estimating the losses, they found that dissolving the partnership would cause to lose valuable things so, they agreed to involve in mediation. During their mediation, the elder agreed to get less money provided that he continued his partnership for a year and a half without paying rental; he found that fair for him while the younger was convinced to pay less money without losing his work and, the most important, without losing his relationship with his partner.
The generality and universality
It is prominent that mediation is a comprehensive process which can address any issue. It addresses the legal disputes and emotional ones as well and that can be vividly demonstrated in disputes where emotions have a great importance. By mediation, financial disputes and passionate ones can be resolved because recognition and excuses between parties are acceptable for resolving issues.
For example, there was a case about a company that had the intention to buy a new factory for increasing its production. The company asked for a contractor to make the factory run at a specific time; however, the contractor did not fulfill his promise. The company began to take its legal action; however, the case was complex because of the contractor and sub- contractors accused each other. The case seemed to be risky and expensive so, all the parties agreed to have mediation.
Once they had met in order to mediate, the owner of the company rushed declaring what he lost because of the delay the contractor and sub- contractors caused. After announcing his losses, the owner of the company found a small sub- contractor burst into tears because if the case was referred to the court, he would endure the legal fees and that would affect his premiums much. The contractor considered that situation and asked the owner to express his demands, in turn; the owner listened to the contractor and understood that he was also affected. The mediation was successful because each one sympathized with the other and understood the demands. That helped them seek a reasonable settlement satisfying all the parties.
In contrast, mediation faces many limitations which draw fears about its applicability.
A non-binding method
Although the mediators take notice that they write a legally binding settlement, there is no force which can implement it. For example, this is a case involving two persons; a man and a woman who is his subordinate. (Bertschler, 2004). She accused him that he used provocative language so, the company asked Dr. Bertschler; the mediator to fix that problem. The man accused of using provocative language denied the allegations describing them as false ones; moreover, he seemed that he has no intention to change his behavior. Dr. Bertschler declared that the two parties never agreed to have a solution because the man rejected it.
Making a Part 36 offer
There are parties attending the mediation to make a Part 36 offer which is an official proposal which can make the other parties pay large legal fees so, these parties may accept the agreement.
A non-precedent process
The agreement which mediation concludes does not provide a precedent so, if the parties have many similar issues, mediation is not the choice they should prefer.
Making a partial decision
Although the mediators pay concern to parties involved helping them reach an equitable agreement, they do not provide any judgment concerning who is legally right and who is not. The mediators aim at avoiding court so, parties who a court decision need may find mediation inappropriate and somewhat feeble.
In conclusion, no doubt that mediation enjoys potential benefits such as relieving the costs and tensions suffered when using court procedures, enhancing relationships between the parties because they agree to mediate by their free will and managing information keeping it secret. Mediation is vividly effective when it is applied during the first phases of disputes because this is the period when opinions can converge and/or be converted to another point of view; however, mediation is not a remedy suitable for those parties whose conflicts need a formal procedure or when a party refused to participate in mediation. It should be clear that mediation is based on the future which means that precedent charges are not covered.References and Notes used:
- "A Short History of Mediation | CFR Mediation Services". Cfrmediation.com. 2009-03-29. Retrieved 2012-03-12.
- Sarah Podro and Rachel Suff. (2008) "Mediation: An employer’s guide"; Chartered Institute of Personnel and Development (CIPD)
- Susan N. Gary, (1997) Mediation and the Elderly: Using Mediation to Resolve Probate Disputes over Guardianship and Inheritance, 32 WAKE FoREsT L. REV. 397, 424.