Problem-solving vs Transformative Mediation

Problem-solving vs Transformative Mediation

Preface

The goal of problem-solving mediation is to help parties generate a mutually acceptable settlement of the immediate dispute. The settlement-oriented mediator usually explains that this is the purpose at the outset and defines a process that will assist the parties to work toward that goal. All of the mediator’s actions also are designed to facilitate that outcome. For example, emotions that might escalate anger and thus prevent a settlement are controlled. Issues that are non-negotiable are diverted, while parties are encouraged to focus on negotiable interests. Mediators tend to discourage a discussion of the past, as that often involves blame, which can make progress more difficult. Rather, parties are encouraged to focus on what they want in the future, and develop ways in which their interests can be met simultaneously. The key feature of mediation is that it is controlled entirely by the parties themselves. They not only choose to enter into mediation, but they also retain control over the process throughout and they elect the terms of the settlement.

Characteristics of problem-solving mediation and transformative mediation

There are two broad modes of mediator involvement during this phase of the mediation. A facilitative mediator style is somewhat like ‘directing the traffic’, whereas an evaluative style is more like ‘driving the bus’. Put differently, the first style can be called ‘orchestrator’ mode, and the latter the ‘deal-maker’ mode.

  1. ‘Directing the traffic’ (sometimes called ‘orchestrator’ mode): the characteristics are to maintain order, provide structure, encourage discussion, summarize a reframe, and keep notes of agreements reached. Advantage of this mode is/are Mediator stays out of the fray, parties assume responsibility for solutions, mediator can observe bigger picture while disadvantage is Lack of direction, parties might be unable to progress on their own; mediation might be over-lengthy and unproductive.
  2. ‘Driving the bus’ (sometimes called ‘deal-maker’ mode): the characteristics are to Control communications, extensive questioning, and suggestion of options, encouragement and pressure to settle. Advantage is/are Mediator’s experience is used to guide parties, parties feel more secure coming to settlements, outcome more likely to be achieved while disadvantage is/are Confusing for parties, mediator acts as quasi-arbitrator, parties might become resistant or later blame mediator for outcome.

Problem-solving or “settlement-oriented” mediation is by far the dominant approach in the field today. Its name implies precisely what it is — a process focused on solving a problem by obtaining a settlement. In the view of a problem-solving mediator, “when conflict exists, a problem exists, and a problem exists because of a real or apparent incompatibility of parties’ needs or interests” Therefore, mediators working within this framework will assess the conflict between two parties and assist them in defining their differences in terms of a problem. If a conflict is set up as a “problem,” then logically, a solution to that problem exists. Through the process of reframing the parties’ positions, the mediator helps parties develop a common definition of the problem. This is the starting point for negotiating a solution that will satisfy the interests of both sides.

Mediation has a number of characteristics and benefits which distinguish it from other forms of dispute resolution:

Voluntary:  unless specifically provided in an agreement, parties enter mediation voluntarily and can withdraw at any point during the process;

Private/Confidential:  unless agreed by the parties, what is discussed during mediation remains private and confidential? Information cannot be shared and both parties will be required to sign a confidentiality agreement prior to the commencement of the mediation. Any information provided to the mediator in a private meeting with one party will be kept confidential unless it is agreed that it can be shared with the other party;

Change of focus: mediation looks forward and end encourage parties to move on from the history and focus on the future;

User Friendly:  Mediation is not and should not be treated as a quasi-judicial process. It has a number of distinct advantages over the court process:

  • It is not imposed and takes place at a time and location agreed by the parties;
  • It provides remedies for resolving disputes that may not be available by pursuing legal proceedings;
  • It is informal and flexible allowing for a combination of joint and individual meetings;
  • All parties participate and it is not stained by “legal speak” or involve cross examination;
  • It is quick to arrange and people focused;
  • It allows parties to be open, provide their views and air strong feelings in a neutral setting directly to each other;
  • Avoids unnecessary legal costs;
  • Improves the channels of communication and understanding between the parties thus preserving relationships;
  • It increases the chances of a mutually beneficial outcome for all parties;
  • It is much less stressful than going to court.

The problem-solving approach has often been criticized as biased culturally to Western norms. Do you agree? What, if any, are the advantages of a transformative approach?

Culture is defined as the shared traditions, beliefs, customs, history, folklore, and institutions of a group of people. Culture is shared by people of the same ethnicity, language, nationality, or religion. It’s a system of rules that are the base of what we are and affect how we express ourselves as part of a group and as individuals. We all develop in some type of culture. Our environment determines what we learn, how we learn it, and the rules for living with others. When we have strong judicial system and well development and functional judicial/legal institutions, still the informal mediation is valued and the reason why in some cases it is criticized as biased culturally to western norms is because, traditionally every ethnicity has its own culture and norms. For instance, Afghans living in the west are not comfortable with their children to decide separations or divorce or getting married to none Muslim but because of the obedience to the constitution where they are settle and accepted as the citizens, they have no choice other than to accept what the constitution and the informal system suggest for them. If the same people would have been in their country, they would have decided and chosen something different.

Integrative or Interest-Based Bargaining

Integrative bargaining (also called “interest-based bargaining,” “win-win bargaining”) is a negotiation strategy in which parties collaborate to find a “win-win” solution to their dispute. This strategy focuses on developing mutually beneficial agreements based on the interests of the disputants. Interests include the needs, desires, concerns, and fears important to each side. They are the underlying reasons why people become involved in a conflict.

“Integrative refers to the potential for the parties’ interests to be [combined] in ways that create joint value or enlarge the pie.”  Potential for integration only exists when there are multiple issues involved in the negotiation. This is because the parties must be able to make trade-offs across issues in order for both sides to be satisfied with the outcome.

Generating options, negotiation and problem-solving

Once a prioritized list of issues is available, the mediation moves to the stages of discussing the various issues, delving into the parties’ interests, considering options for resolution, and negotiating specific outcomes. Generically we might refer to this as the ‘problem-solving’ stage of the mediation. Some of this is just semantics, but there are some important variations in practice. Thus problem-solving, involving option generation and creative negotiation, might be used in commercial or neighborhood disputes but be less evident in personal injury disputes which might only involve a haggle over money. As much of this stage has to do with different aspects of negotiation and bargaining, this section should be read in conjunction with.

Confidentiality of information flows/sharing

The mediator must make it clear from the beginning that, mediation is conducted confidentially, which means that, in so far as the law allows, I will not disclose anything said here today. I will be taking some brief written notes, but these will be destroyed after the mediation and cannot be accessed by either of you. Mediation is also conducted on a ‘without prejudice’ basis which means that should the matter go to court, which we hope it will not do, then neither of you can lead evidence about what the other said at the mediation or produce documents which they made for the mediation. Do you understand these basic principles …? Please check with your solicitors if you require more advice on these points.

 

Reference

By Brad Spangler  September 2003 http://www.beyondintractability.org/essay/problem-solving-mediation

By Brad Spangler June 2003 http://www.beyondintractability.org/essay/interest-based-bargaining

Psychology, 5/e   Wortman, Loftus & Weaver Online Learning Center   http://www.mhhe.com/socscience/intro/cafe/wort/olc/18454.htm

By Sterling Newberry http://www.mediate.com/articles/redwing1.cfm

UOC materials

http://materials.cv.uoc.edu/continguts/PID_00163166/web/main/materias/PID_00163165-0.pdf

 

Peace,

Sial

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