Introduction
Period 2 of coursepack MCM-601 focuses on how mediation can be adopted in conflict resolution. The primary goal of mediation is to help the parties through the decision-making process by “assisting parties to make decisions about the distribution of power and resources” (World Mediation Organization n.d., 305). This assertion became evident through watching the assigned video and reviewing Part 2 of the anthology. However, reaching this goal is not as simplistic as approaching the parties with a few potential solutions that could help them agree on a shared decision. The process begins well before the parties have possible solutions on the board. Some schools of thought are of the view that decision-making comes after problem identification and problem-solving processes occur. These processes lead to increased authority in the parties’ decisions with a greater understanding of themselves and the other party (Moore 2014, 32). Based on the awareness that each step must be taken to reach the goal of a decision, this reader focused on the presentation of these steps to gain a more in-depth understanding as to how they build from one another. The Anthology and YouTube video in this course pack are presented throughout this report.
World Mediation Organization: Nonviolent Conflict Transformation
In this work, the author presented the listening stage and persuasion stage as a method of scaffolding from role identification to decision-making. Facilitating the dialogue is achieved through the process of moving through these steps. These include building a rapport and becoming aware of one’s areas of bias. According to Coleman both implicit and explicit biases may be present and addressed early in the mediation process. During the persuasion stage, it is then possible to consider what has been tried and establishing the fears associated with proceeding with the dialogue. In other words, the mediator is persuading the parties to open up the conversation to explore the issues and arrive at a solution that is mutually beneficial (Coleman et al.2014, 44). Of course, it may be that the parties have considered that they have tried everything and then, through this process, realize that some details may have been omitted.
Once the parties have agreed to mediation, the next step is to identify their positions and interests. Knowing the difference between a position and interests helps to understand why the conflict may have begun or escalated. Accordingly, when a party identifies their position, they may refuse to budge. However, the mediator’s role is to help the parties recognize the underlying problems and motivations for maintaining that position (WMO n.d., 374-75). The author explained that these motivators might be intentionally hidden for fear that their exposure might weaken their position. It is essential to move the dialogue from the position to the interest to overcome this potential. In essence, the mediator must acknowledge their positions but work with the parties to understand why they are in this position and what issues can be identified and worked through relating to this position.
Mischnick (2013) noted that it is crucial not to challenge either party’s position but rather to focus on drawing out their interests to achieve the goal of momentum in the dialogue. Asking questions such as “Can you help me to understand better why this is your position?” can help create rapport by expressing that the mediator does not claim to know everything (WMO n.d., 376). This explanation was interesting as it indicates that the parties need to feel that they, at least to some degree, control this process. Hörner and others (2015) added to this area of knowledge by explaining that people begin the negotiations by offering their own solution, which will yield them the most incredible benefits (Hörner et al. 2015, 2). They are then countered by the other party’s ideal outcome to achieve the most excellent benefits. However, these positions do not meet one another. It is not the mediator’s role to tell them that they are wrong for wanting to benefit from this arrangement to a greater extent than the other party. Instead, Hörner et al. (2015) stated that the mediator should validate their interests rather than focus on their behaviours (Hörner et al. 2015, 22). There are three types of interests to include substantive or tangible, psychological, and procedural. Hörner et al. (2015) noted that if these interests are met, then the parties can reach a successful resolution (Hörner et al. 2015, 22).
One way that Mischnick (2013) argued about exploring these interests is to provide the parties with a visual list such as on a whiteboard in the room. According to the author, “This provides a visual agenda and makes it easier to keep the discussion focused’ (WMO n.d., 383). In other words, the parties have a visual cue to stay on topic. Additionally, the author pointed out that this practice prevents the parties from feeling the need to reiterate their positions or interests because they have been validated when they were placed on the board. The author noted that the lists could be separate or together, with the latter being preferable as it indicates a “joint effort for a solution” (WMO n.d., 384).
Once the list has been created, then it is possible to establish an agenda or determining the order in which interests or problems will be addressed. The author provided seven ways to set the plan, which allotted for good options based on the extent of the issues and the parties’ cooperation. For instance, the problems can be ranked by importance if collaboration is high, while organizing them by the most accessible first may help to give momentum to the mediation. The most challenging issue first is a strategy when the parties cannot focus on other matters while acknowledging short-term and long-term issues may help the parties to understand their significance. Another agenda allows each party to alternate, choosing what to address next. Principles first enable the parties to identify criteria for solutions. Finally, the building-block approach puts the issues in a logical sequence (WMO n.d., 387).
Another critical step in the mediation process is to identify areas of agreement or commonalities. For instance, do they both stand to benefit if the issue is resolved, or can they agree that the problem has been complex on them? Mischnick (2013) explained that it is vital that the commonalities are honest and relevant to the issues at hand (WMO n.d., 395). The author explained that honesty is one of the primary assets that a mediator has because it is essential that the parties must find trustworthy. This characteristic will then encourage the parties to be honest about their experiences, interests, and emotions.
Mischnick (2013) then explained that the parties should be given the opportunity to present their solutions to the problem through this new level of understanding (WMO n.d., 324). The author added that each proposed solution does not have to be discussed the moment it is presented. Mischnick (2013) recommended that a range of solutions be brainstormed and written down, even those which are clearly not acceptable (WMO n.d., 324). Once the list is compiled, the mediator can guide the parties to critique the options together. Once a solution is agreed upon, the parties can help to establish a path towards implementation.
Unfortunately, these strategies may end in a deadlock. At that time, Mischnick (2013) explained that it might be necessary to call a caucus or separate meetings (WMO n.d., 373), such as in Larsen’s (2013) shuttle mediation. The exact process of establishing rapport is needed, with the mediator taking on the role of a concerned outsider (WMO n.d., 391). However, the mediator carries information back and forth between the parties with their consent to try to express their interests and identify potential solutions. Notably, these arrangements are best suited when the tensions are high, or there are disruptive behaviours exhibited.
These tensions can be carried over into the caucus, but Mischnick (2013) offered ways to break the deadlock. For instance, the author discussed switching from trying to solve a problem to working towards building a relationship (WMO n.d., 393). These tasks focus on the commonalities and allowing the parties to vent and rationalize their feelings. Mischnick (2013) explained that it is a crucial skill to know when to switch between these roles to mitigate the extent of the deadlock (WMO n.d., 395). Finally, the author stated that it might be necessary to put the issue aside for some time and come back to it with a fresh outlook. Throughout these topics, Mischnick (2013) provided essential details as to how to practice mediation as well as to either avoid or address issues in the process (WMO n.d., 396).
Another engaging area in the reading was related to the topic of restorative justice. The author differentiated restorative justice and restorative processes by explaining that the former handles cases where harm has been experienced. However, Mischnick (2013) demonstrated that the process does not begin with the individual who committed the injury, and they are not expected to admit their guilt as a term of achieving restorative justice (WMO n.d., 453). In other words, restorative justice is intended to reach an agreement where the party who was harmed receives some degree of repayment while the guilty party agrees to pay or meet their terms without having to state their accountability. Mischnick (2013) added that these processes are intended to be more open and honest than the courtroom allows for due to the procedures (WMO n.d., 453). For example, if the function finds that the person who was identified as being harmed “have either themselves caused harm or contributed to the conflict that gave rise to the offense, then that is precisely the sort of ‘fact’ that should (and routinely does) ‘come out’ within a restorative justice process and is dealt with appropriately (WMO n.d., 475). Such findings may not occur in the courtroom but lead to a higher degree of fairness in restorative justice.
When comparing mediation and restorative justice, it is evident that one individual is expected to receive the most benefits in restorative justice while mediation focuses on mutual and equal benefits that are agreeable to both parties. Of course, the person who caused the harm in restorative justice may receive some benefits such as a reduced sentence or even the satisfaction of knowing that they are doing the right thing. However, in mediation, the goal is to solve a problem that is affecting all parties involved by identifying ways to compromise or implement solutions. According to Mischnick (2013), this process is not straightforward and there is no one-sized-fits all approach (WMO n.d., 316). Many strategies that can be employed to achieve the goal of encouraging them to come to an acceptable decision together. In restorative justice, the agreement is intended to make the harmed individual feel better or have improved outcomes following the occurrence. Mediation helps to build relationships and prevent future conflicts from escalating to the point of needing additional mediation services.
Mischnick (2013) explained that, although these two differ, it is probable that restorative justice was developed by mediators as many of the same terms and strategies are utilized (WMO n.d., 445). Therefore, one could argue that restorative justice is a branch of mediation that focuses on parties where one has suffered injury due to the actions of the others. Yet, this is more of a philosophical analysis of the text’s content and how it was presented throughout the chapter. The author maintained that the two are separate but have many common aspects making it worthwhile to include restorative justice in the discussion with mediation.
3) Mediation for Conflict Resolution
In the YouTube video for this course pack, “Mediation for Conflict Resolution,” Larsen (2013) was interviewed and explained the processes of mediation as well as discussed times when mediation is most appropriate. The speaker provided an example of the mediation process with the man who sold wood and did not realize that the volume of the truck that he borrowed was less than his own. This realization led to the parties viewing the issue as a misunderstanding that could be quickly rectified. The speaker explained that this was an excellent example of a case where mediation was appropriate. According to Larsen (2013), when there is an opportunity to shift the balance, mediation is appropriate. However, the speaker also explained that when the imbalance is significant, then mediation may not prove to be a positive experience.
Larsen (2013) explained that mediation is can often help the parties have more favourable outcomes associated with their interests than they might in the courtroom. Once the mediator can establish an understanding of the party’s interests, they must communicate them with the other party in such a way as to achieve a degree of acceptance. Larsen (2013) explained that it is critical the mediator must attain consent prior to sharing any information with the other party. Notably, this is relevant only in mediations that are carried out remotely or through shuttle mediation where the parties are in separate rooms or locations because they would be sharing the information themselves if in a shared room. These forms of mitigations are discussed later in the current report with more details about how and why they are conducted. If both parties are willing to acknowledge the interests of the others, they can then come to understand their positions.
CONCLUSION
This report has provided a review of the current chapters with support from the assigned video and outside sources. While the discussion is not comprehensive of the chapter, the primary focus was on mediation with the inclusion of restorative justice later in the text. Several key lessons have been learned through this process. For instance, the use of a physical list to validate the party’s claims without them feeling the need to reiterate was highly interesting. So often, parties will get stuck on repeating their position that they are unable to explore their interests and potential solutions. It may be possible to move forward with the dialogue by preventing the need to be repetitive. Another interesting lesson was that the agenda could be set up based on the conditions between the parties. By having that flexibility, the mediator can personalize the experience and make the parties more comfortable in their dialogue. As noted in restorative justice, the courtroom experience has far less flexibility which may minimize the willingness of the parties to communicate openly and honestly. However, by placing them in control over how the decisions will be identified and implemented, the process of mediation is comfortable and able to achieve more favorable outcomes. Additionally, the concept of switching roles during the mediation was informative and raised questions about cues that may be an indicator of this need. In closing, the readings and video provided this learner with the opportunity to understand better how the process works and what strategies may help to ensure a successful outcome for all parties involved. Additionally, the readings clarified the differences between mediation and restorative justice. Moving forward, this information will be useful in creating a mediation momentum through persuasion, determining the agenda, identifying the positions and interests, and assisting the parties to reach a decision together that will be mutually beneficial.
References
Coleman, Peter T., Morton Deutsch, and Eric C. Marcus. 2014. The handbook of conflict resolution: Theory and practice. John Wiley & Sons.
Hörner, Johannes, Massimo Morelli, and Francesco Squintani. “Mediation and peace”. The Review of Economic Studies 82, no. 4 (2015): 1483-1501.
Larsen, J. 2013. “Mediation for conflict resolution.” Video.https://www.youtube.com /watch?v =kIBuXw1qAYM
Moore, Christopher W. 2014. The mediation process: Practical strategies for resolving conflict. John Wiley & Sons.
WMO. n.d. Mediation & Conflict Management. World Mediation Organization.
