THWARTING THE STRUCTURAL AND INDIVIDUALIZED ISSUES OF MEDIATION: THE FORMALIZED REFLECTIVE APPROACH (original) (raw)
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Formal conflict resolutions are very familiar from media as legal trials resulting in long prison sentences or large compensation payments inevitably attract attention. in contrast, far more inconspicuous alternative dispute resolution (aDR) methods often demonstrate their great practical usefulness as conflicts between parties are not only inevitable, but can also be considered a positive phenomenon because conflict allows an unwanted situation to be changed to the benefit of all parties involved in a transaction. the second aDR thesis is that the parties on their own can resolve many, if not most, of their conflicts, but no aDR method can be effective when the parties have lost trust with each other. Mediation is probably the most popular aDR method in Poland presently as an intervention into negotiations or conflicts that are already underway. a third party, the mediator, who is accepted by all parties and does not possess any power to make an authoritative decision resolving the...
Title: Mediation and Conflict Resolution
Title: Mediation and Conflict Resolution, 2023
Mediation and conflict resolution are essential processes for managing and mitigating disputes that arise in various contexts, from interpersonal relationships to international diplomacy. This abstract delves into the significance of mediation, its key principles, and the role it plays in resolving conflicts. Mediation is a structured process in which a neutral third party, the mediator, assists disputing parties in finding mutually acceptable solutions to their problems. It offers an alternative to litigation and provides a space for open communication, allowing the involved parties to express their concerns and interests. Mediation has gained prominence in recent years due to its effectiveness in fostering collaboration, preserving relationships and reducing the emotional and financial costs associated with adversarial proceedings. One of the central principles of mediation is neutrality. The mediator must remain impartial and not take sides in the conflict, ensuring that each party feels heard and respected. This impartiality promotes trust and cooperation among the disputing parties, increasing the likelihood of a successful resolution. Additionally, mediation is voluntary, meaning that participants willingly engage in the process, empowering them to make informed decisions about the outcome. Conflict resolution, on the other hand, is the ultimate goal of mediation. It involves addressing the underlying issues and finding solutions that satisfy the interests of all parties involved. These solutions can range from simple agreements to complex settlements, depending on the nature and complexity of the dispute. Conflict resolution through mediation is not limited to interpersonal disputes but extends to broader applications, including workplace conflicts, family disputes, and international negotiations. In the workplace, mediation is a valuable tool for addressing conflicts between employees or between employees and management. It can foster a healthier work environment, boost morale, and enhance productivity by addressing underlying issues. Similarly, in family disputes, such as divorce or inheritance conflicts, mediation can help maintain relationships and reduce the emotional toll on all parties, particularly children. On an international scale, mediation is crucial in averting and resolving conflicts that could escalate into full-fledged wars. Skilled mediators and international organizations play a critical role in facilitating negotiations between nations, promoting peace, and ensuring global stability. Mediation and conflict resolution are vital processes for addressing disputes and fostering cooperation at various levels, from personal relationships to global diplomacy. The principles of neutrality and voluntariness guide mediation, ensuring that participants have control over the outcome. The ultimate aim of mediation is conflict resolution, which not only settles immediate issues but also helps maintain relationships and prevent future disputes. The importance of mediation in promoting peace, understanding, and collaboration cannot be overstated, making it a powerful tool in today's interconnected and often contentious world
Arbitration: The International Journal of Arbitration, Mediation and Dispute Management, 2021
Mediation is often held out as a panacea. The current state is that information and exchange seldom flow freely between different areas of Dispute and Conflict Resolution theory and practice, and the quality and quantity of mediation research are suffering as a result. Analysis of the historiography of the fields of Conflict Resolution/Conflict Transformation (CR) and Alternative Dispute Resolution (ADR) reveals evidence of how and why this compartmentalisation has arisen and provides clear evidence of common origins and of the divergence of ADR and CR from the 1980s onwards. This is demonstrated through a qualitative analysis of the historiography of the two fields, cross-field UK/USA English language author analysis, analysis of how each field represents itself and the 'other', and the impact of this representation. I apply ADR in this article as capturing mediation and negotiation as its primary focus, not arbitration. This is due to some OECD English-speaking jurisdictions no longer considering arbitration to be 'ADR', because the time, cost and procedure in arbitration has made it virtually indistinguishable from judge-led court processes in these jurisdictions. Please note the worldwide variation in the application of the term 'ADR'.
Mediation and Appropriate Dispute Resolution
Singapore Academy of Law Annual Review of Cases, 2020
2019 was a significant year for mediation. On 7 August 2019, 46 states – an unprecedented number – came together in Singapore to sign the United Nations Convention on International Mediated Settlement Agreements Resulting from Mediation (“Singapore Convention”). The Convention, which comes into force on 12 September 2020, provides a legal framework for the recognition and enforcement of mediated settlement agreements across borders and thereby addresses one of the major criticisms of international mediation, namely, the lack of an internationally recognised expedited enforcement mechanism. The Singapore Convention aims to be for mediation what the Convention on the Recognition and Enforcement of Foreign Arbitral Awards is for arbitration. The Singapore Convention casts an even brighter spotlight on Singapore as a mediation and dispute resolution hub; with this attention comes increased interest in Singapore’s jurisprudence on mediation and other forms of appropriate dispute resolution (“ADR”). It is therefore timely to introduce a chapter on mediation and ADR to the Ann Rev. In terms of scope, this chapter will not deal with arbitration unless it forms part of a mixed mode dispute resolution process, which has mediation as an element. Further, the authors note that the body of jurisprudence on mediation and ADR-related subject matter is evolving. Thus, the categories of cases in this chapter will develop accordingly. In this inaugural chapter, the authors offer a review of cases in three categories. First, cases on the recognition and enforcement of negotiated and/or mediated settlement agreements are examined. Next, cases which address issues in mediation and ADR practice and ethics are reviewed. Finally, the authors consider cases dealing with civil procedure aspects of mediation, including disclosure of mediation evidence and the apportionment of costs.
Towards mediation: developing a theoretical framework to understand alternative dispute resolution
Industrial Relations Journal, 2011
This paper examines alternative approaches to conflict resolution by developing a theoretical framework that relates dispute resolution practice to philosophical assumptions about authority and knowledge. By investigating the assumptions underpinning interest-based bargaining and mediation, their link to direct democracy and challenge to managerial authority are revealed at the level of theory and practice.
Putting the cart before the horse: The benefits of arbitrating before mediating
Journal of Applied Psychology, 2002
The authors examined the impact of 2 hybrid dispute resolution procedures (mediation-arbitration [med-arb] and arbitration-mediation [arb-med]) and 3 disputant dyadic structures (individual vs. individual, individual vs. team, and team vs. team) on various dispute outcomes. Consistent with W. H. Ross and D. E. Conlon (2000), the authors found that disputants in the arb-med procedure (a) settled in the mediation phase of their procedure more frequently and (b) achieved settlements of higher joint benefit than did disputants in the med-arb procedure. These results suggest that arb-med may be a dispute resolution procedure with broader applicability than originally imagined.
Finding Out If it is True: Comparing Mediation and Negotiation Through Research
Social Science Research Network, 2002
JOURNAL OF DISPUTE RESOLUTION ways in which mediation might help overcome them. This work provides a more pragmatic and empirically grounded perspective on the potential value of mediation than does "mediation ideology" and suggests a wide range of "hypotheses" to guide future research. Finally, we reexamine briefly the research about preferences for mediation and the modest body of existing studies that do contrast litigant experiences with mediation and unaided negotiation in the context of litigation. This reexamination hints that "it may in fact be true"that is, participation in mediation may enhance parties' perception of procedural justice. Before we can be confident in the answer to this question, however, research is needed that carefully compares the experiences of parties in mediation with those in unassisted negotiation. II. CONTEXTUALIZING MONEY DAMAGE CASE MEDIATION Early in her paper, Professor Hensler sets out in italics a fundamental opposition between "adversarial litigation with the chance of adjudication" and "mediation under court auspices." 4 Later, she notes that she is "not arguing against negotiating civil legal disputes. For the purposes of this paper, I assume that courts order litigants to mediation when bilateral bargaining has failed." 5 Neither this strong opposition nor this assumption, however, accord well with much of the descriptive evidence about the highly varied civil mediation programs in the United States. Indeed, court-sponsored civil mediation appears to be part of an adversarial litigation process with a chance for adjudication, and it is at least as likely to be invoked to facilitate serious negotiation as to follow up on unsuccessful bargaining. 6