Spencer and Brogan (2006) outline a 9 stage mediation process. Which stages do you think are critical and why?
Spencer (2006) defines mediation as “a form of dispute resolution, found outside the adjudicative space of the court room or tribunal, where parties in dispute or conflict utilise the assistance of a third party neutral to attempt or resolve their dispute”. The nine stages of Spencer and Brogan’s mediation process are as follows; Preparing for mediation, The Mediator’s Opening Statement, The Parties’ Opening Statements, Identifying Issues and Interests, Identifying Common Ground, Identifying early options for agreement, Separate sessions, Final Joint Meeting, Writing up the settlement or termination of the mediation (Spencer and Brogan, 2006). These stages all play an important role in the mediation process and should all be implemented effectively by the mediator for the best chance of achieving a resolution agreeable to both parties (Whatling, 2012). Some stages of the mediation process do play a more critical role than others. The mediators opening statement, the second stage in the mediation process, is one of these critical stages. The identifying issues and interest stage is another critical stage, this is the fourth stage in the process. The final stage of writing up the settlement is also one of utmost importance. These three stages are the most crucial in increasing the likelihood of a successful mediation.
Mediation is an alternative dispute resolution method to the courts that involves a neutral third party helping two parties in dispute to reach a resolution that satisfies them both. Mediation can be both voluntary and court ordered. Mediation has numerous advantages that enable it to work. It is a positive process which encourages cooperative problem-solving and preserves relationships (Boulle and Alexander, 2011). It allows people to have their say. It can look at all aspects of the problem, not just the immediate issues. Finally, it enables people to hear directly from each other and gain a better understanding of each other’s needs. These functions make mediation effective at solving conflict. Conflict is inevitable and not always negative (Liebmann, 2011). When handled constructively conflict can have positive benefits for both parties in mediation. It can provide opportunities for innovation, review and renewal, for the restoration of both personal and business relationships and for establishing improved arrangements for the future (Boulle and Alexander, 2011). Being able to resolve conflict is one of the key elements necessary to describe mediation as successful (Bercovitch, 2011).
The mediators opening statement is definitely critical to the mediation process, particularly for first time participants and even if the parties have had plenty of prior contact with the mediator (Boulle and Alexander, 2011). Prior to this stage formally beginning an informal, yet important, aspect of the process takes place: meeting, greeting and seating. This may involve some introductions, for example when legal representatives are present, so everyone is familiar with who is present (Boulle and Alexander, 2011). The mediator may also engage in some small talk with parties so they can interact with each other in positive manner, hopefully setting the trend for the mediation. Appropriate seating positions must also be selected for the mediation – ideally the two parties are seated opposite each other with the mediator in the middle which should ensure that the parties are comfortable. The mediator should then begin by formally introducing themself and what they are comfortable with being addressed as. The mediator needs to inform the parties of the nature of mediation and what they, the mediators, role is. It is important that both parties understand that the mediator is a neutral third party who will not take sides. The same earlier step should also be done with the parties to ensure that they are...
References: Bercovitch, J. (2011). Theory and Practice of International Mediation.
Boulle, & Alexander (2011). Managing the Mediation Process. In Mediation Skills and Techniques. Butterworths.
Doherty, N., & Guyler, M. (2008). Just how does mediation work?. In The Essential Guide to Workplace Mediation and Conflict Resolution : Rebuilding Working Relationships. Kogan Page:
Herrman (2009). Applying the Comprehensive Model to Workplace Mediation. In The Blackwell Handbook of Mediation : Bridging Theory, Research, and Practice. Blackwell Publishing Ltd.
Liebmann, M. (2011). Conflict Resolution. In Mediation in Context. Jessica Kingsley Publishers Ltd.
Roberts, M. (2008). The session and the strategies. In Mediation in Family Disputes : Principles of Practice. Ashgate.
Spencer, & Brogan (2006). The Mediation Process. In Mediation Law and Practice. Port Melbourne, VIC : Cambridge University.
Whatling, T. (2012). Mediation, Process and Practice. In Mediation Skills and Strategies : A Practical Guide. Jessica Kingsley Publishers Ltd.
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