2012-2013

CORSO DI LAUREA MAGISTRALE IN LINGUE SOCIETA E COMUNICAZIONE Martina DAvalos Essay Mediazione Inglese

[THE ROLE OF MEDIATOR IN ALTENRATIVE DISPUTE RESOLUTION]

Index
Introduction ....................................................................................................................................................... 2 Alternative Dispute Resolution.......................................................................................................................... 3 -What is ADR?-............................................................................................................................................... 3 -Mediation in ADR- ....................................................................................................................................... 3 -The benefits of Mediation- ........................................................................................................................... 4 The mediator in ADR ......................................................................................................................................... 5 -Facilitative & Evaluative mediation- ............................................................................................................ 6 -Techniques and Strategies- .......................................................................................................................... 6 -Language of Mediation- ............................................................................................................................... 7 Conclusion ......................................................................................................................................................... 7 Bibliography ....................................................................................................................................................... 9 Websites ............................................................................................................................................................ 9

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser in fees, expenses, and waste of time. -Abraham Lincoln-

Introduction
Conflicts have existed in all cultures, religions, and societies since time immemorial, as long as humans have walked the earth. In fact, they also exist in the animal kingdom. Philosophies and procedures for dealing with conflicts have been part of the human heritage, differing between cultures and societies. Conflicts can develop in any situation where people interact, in every situation where two or more persons, or groups of people, perceive that their interests are opposing, and that these interests cannot be met to the satisfaction of all the parties involved. Because conflicts are an integral part of human interaction, one must learn to manage them, to deal with them in a way that will prevent escalation and destruction, and come up with innovative and creative ideas to resolve them. In the twentieth century many reached the understanding that disputes are normal in human society, and not necessarily destructive, and that if they do not get out of hand they may have within them a potential for growth, maturity, and social changes, an opportunity for new ways of thinking and new experiences.1 The field of conflict resolution has matured as a multidisciplinary field involving psychology, sociology, social studies, law, business, anthropology, gender studies, political sciences, and international relations. The search for efficient and better ways to resolve disputes, and the art of managing conflicts, are as old as humanity itself, yet it has only been within the last thirty years or so that ADR as a movement has begun to be embraced enthusiastically by the legal system.2 The aim of this essay will be to focus on the principal procedures of Alternative Dispute Resolution with a particular attention to the role of the mediator in conflict resolution. In order to achieve this goal I collected information from academic papers and internet resources comparing different kind of procedures.

Alternative Dispute Resolution Approaches and their application, Yona Shamir, Israel Center for Negotiation and Mediation (ICNM), 2011, pag 7-9 2 Mediation Alternative Dispute Resolution (ADR) and the Alaska Court System, Alaska Judicial Council, December 1999, pag 4-12

Alternative Dispute Resolution

-What is ADR?Typically when a case goes to court the final results are determined by a judge or other court representatives leaving you virtually no control of the outcomes, but there is another option to resolve the disputes which can help all the parties to maintain control and to make decisions. This option is known as Alternative Dispute Resolution, or ADR. ADR is a general term that includes: mediation, facilitation, arbitration and other court strategies for resolving cases. There are many benefits in using ADR instead of going into a court. In fact this Alternative Dispute Resolution is usually easier, faster and less formal than a typical trial, giving to all the parties a more direct involvement and more control over the final result3. This method also can be less stressful and less expensive than a formal court proceeding; ADR also is confidential, which means that what is said during an ADR session may not be used in the discussion of the court case, but that gives the opportunity to speak openly and freely.

-Mediation in ADROne of the most popular form of trail dispute resolution is mediation, and it will be also the form that I would like to discuss in this essay. Mediation is an informal process in which a neutral party known as mediator helps the two parties to reach an agreement. A similar form of mediation, but less formal, is facilitation. The most important mediator responsibility are: to identify important issues, to clarify misunderstanding, to explore solutions, to negotiate a settlement. In mediation decisions making by the parties must be voluntary, only those issues upon which both parties can agree could be included in the settlement. An additional form of trial dispute resolution is arbitration, this process is similar to mediation although in an arbitration the neutral third party known as an arbitrator considers the fact that arguments presented by both the sides and then the arbitrator offers an unbending decision that ultimately will be approved by the judge. There are many kinds of ADR procedures. Some ADR processes are adjudicative, involving a third-party decision-maker who renders a decision based on adversarial presentations. Some are consensual, in which the parties make the decisions. Another way to understand different dispute resolution processes is to distinguish between those that are rights based and those that are interest based. Rights-based processes like litigation and arbitration narrow issues, streamline legal arguments and predict outcomes based on fact and law. Interest3

Real Dialogue. Real Answers: Alternative Dispute Resolution, Indiana Supreme Court, video-lessons (http://www.youtube.com/playlist?list=PL41C4DEB603101CE8)

based processes like mediation expand the legal discussion to examine underlying interests, deal with emotions, and seek creative solutions. An ADR process can contain both rights-based and interest-based elements; for example, in settlement conferences judges often predict legal outcome but also may explore underlying interests.

-The benefits of MediationThere are many benefits in using mediation in ADR instead of formal court trial: you and the other party can maintain more control over the resolution of your own problems, disputes can be settled promptly, mediation cost can be significantly less, it can promote better relationship improving communication, as a result the parties are more likely to abide by agreements, mediation is also private and confidential.

We can sum up this benefits in a scheme which compare the typical litigation with the method of arbitration and mediation as follow: How Litigation Compares to Arbitration and Mediation4

Litigation Judge/Jury makes decision Formal process Formal rules of evidence Formal discovery Can be expensive and time consuming Public record Verdicts final, subject to appeal

Arbitration Arbiter makes decision Less formal process Rules of evidence relaxed Limited discovery Often quicker and cheaper than litigation Hearings are private Decisions can be binding with limited appeal rights

Mediation Parties make decision Less formal process Rules of evidence do not apply Informal fact-finding Often quicker and cheaper than litigation Private and confidential Parties decide whether to settle

Another important benefit, which doesnt appear in this scheme, is the time-saving. In fact for many it can reduce time and litigation cost through earlier settlement. Studies have shown that mediation

The above information was developed by E. Kent at the Hawaii State Judiciarys Center for Alternative Dispute Resolution

settled cases 60-80% of the time5 with relatively high levels of user satisfaction and durable agreements. If a case cause the court a judge will work hard in a limited timeframe to deliver a fair decision. However the judge has a busy task and as a result he has a limited time to hear the details of a specific case. A mediator is not a judge and s/he has not to take a decision or impose a solution to the dispute. Instead a mediator is a specially trained professional who remains impartial and guides the parties through important issues helping to take a decision. The mediator manages the mediation session and ultimately helps to negotiate a settlement and s/he may take more time within a brief session so that the judge could be able to devote to a particular case. The mediator also will direct negotiation in a very brief time. Anyway in the case of a long mediation each of the parties have the chance to present his or her point of view. Depending on the case of each trial a mediator can choose: to meet with all parties together, to meet individually with each party or to employ both of this options. By mediating individually each participant has the opportunity to share with the mediator any private particular concerning with the case, which could be embarrassing in the presence of the opposing party. Typically the mediator will work with each person and through all the important issues. If an agreement is reached that is acceptable to everyone the agreement will be put in writing and signed by all the parties.

The mediator in ADR

As we have just seen the mediator play a fundamental role in Alternative Dispute Resolution. The mediators role is multiple: to help the parties think in new and innovative ways, to avoid the pitfalls of adopting rigid positions instead of looking after their interests, to smooth discussions when there is animosity between the parties that renders the discussions futile, and in general to steer the process away from negative outcomes and possible breakdown towards joint gains But it is also important to know that a mediator must respect the limits of his profession. First of all the mediators, who are hired, appointed, or volunteer to help in managing the process, should have no direct interest in the conflict and its outcome, and no power to render a decision. They have control over the process, but not over its outcome.

Data of Alaska Judicial Council

-Facilitative & Evaluative mediationThe mediators role can take various forms. Some mediators favor a facilitative style, encouraging parties to generate their own settlement options and seldom suggesting settlement terms. At the other end of the spectrum are evaluative mediators, who will propose settlement options, assess the merits of claims or defenses, predict the likely outcome in court and try to persuade parties to make concessions. Some mediators can use both facilitative and evaluative techniques, depending on what the parties want and what the situation requires. Before hiring a mediator, parties should ask the mediator about his/her preferred style. Mediation often works better when parties have lawyers to give them legal advice, although lawyers are not required. The lawyer can explain legal rights and responsibilities and help evaluate settlement options. Lawyers need not attend the mediation, as long as the client keeps them informed.

-Techniques and StrategiesMediators use a variety of strategies and techniques during mediation. They develop their personal style depending on their personality, experience, and beliefs in the role of mediation. There are some required skills and tools of a good mediator, such as: listening skills, strong negotiating skills , the ability to create trust among the parties and the ability to identify the issues of the dispute. There are also several approaches to mediation, and I will present the two that are most used, that is to say: evaluative and transformative approach. The mediator needs to adopt one of these approaches, or a combination, depending on the specifics of the case and the nature of the parties. Evaluative mediation, as we have seen in the last paragraph, is a process where the mediator is the one who provides guidance as to the appropriate grounds for settlement. The mediator offers solutions, and even tries to predict the likely outcome in court, in case the mediation process fails. As the mediator has a dominant role in the process, the evaluative mediator influences and directs some and sometimes all of the outcomes of the mediation. For what concerns the transformative approach, this approach in mediation is a process in which the mediators role is to help and assist the parties to reach an agreement. The transformative approach to mediation, as described by Folger and Bush, views conflict as an opportunity for solving problems through transformation. Folger and Bush believe that conflicts store the potential for valuable transformation in two aspects: empowerment of the parties, and recognition.

1. Empowerment: the parties believe in themselves and their value. 2. Recognition: the parties have the ability to understand the other partys point of view, and why they proposed the solution that they did. Evaluative
Mediator offers solutions predicting the likely outcome

Facilitative
Mediator encourages parties to generate their own settlement options

Transformative
Mediator solves problems through empowerment and recognition

-Language of MediationIn the case of a legal mediation, language play a fundamental role to reach a common agreement. In fact, in this case a good mediator needs specific skills to solve the problems before they became too big, using a kind of people-to-people communication, as public diplomacy does. For example, sometimes, the language of mediation can be ambiguous. Ambiguous formulations are used in legal mediation language, as well as in diplomacy, to allow for a degree of consensus when the two parties cannot come to an agreement. If the two parties have strong and contradictory interests the issues of conflicting interests can be resolved by simulating a compromise. So the mediator may come up with a formula which is open to at least two different interpretations; which can carry at least two meanings, making sure that the parties retain their own individual perception6. Of course the mediators who operates in the legal sector have to know the specific terminology of legal language .

Conclusion
An increasing number of crime victims are choosing to meet face-to-face with the persons who victimized them. They are able to let the offenders know how the crime affected their lives, to receive answers to many lingering questions, and to be directly involved in holding offenders accountable for the harm they caused. ADR mediation is recognized as a viable alternative to more traditional retributive response for serving victims needs by probation, prosecuting attorneys, courts, correctional facilities, and communities. As the field of ADR mediation has grown extensively over the past 25 years, it has become increasingly important to conduct the process in a highly victim-sensitive manner while considering the needs of offenders. Mediation facilitates
6

Use of Ambiguities in Peace Agreements," Language and Diplomacy, Malta: DiploFoundation, 2001 (lesson Professor Spinzi)

dialogue between opposing parties in an effort to address and resolve a dispute. The parties to a dispute are encouraged to exercise considerable flexibility and creativity in working together to reach a mutually acceptable resolution thus improving communication, ownership and increasing in the likelihood that the resolution will be long lasting and they retain control over the outcome of the process.

Bibliography
Alternative Dispute Resolution Approaches and their application, Yona Shamir, Israel Center for Negotiation and Mediation (ICNM), 2011 Mediation Alternative Dispute Resolution (ADR) and the Alaska Court System, Alaska Judicial Council, December 1999 Mediation and Dialogue: Official and Unofficial Strands, Natalia Mirimanova, International Alert, January 2009 Alternative Dispute Resolution: A developing world perspective, Albert Fiadjoe, Cavending publishing, 2004 ADR: law and practice, Edward A. Daue, Juris Publishing, 2000

Websites
http://www.youtube.com/playlist?list=PL41C4DEB603101CE8 http://www.hg.org/adr.html http://www.contactlaw.co.uk/case-handler-alternative-dispute-resolution-a-typical-scenario.html http://www.yoursocialworker.com/s-articles/cbsp.htm