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    The Practice of Mediation Bls. 285-301

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    苏建欣

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    The Practice of Mediation Bls. 285-301

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    苏建欣
    17 views17 pages

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    The_Practice_of_Mediation_bls._285-301

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    The Practice of Mediation Bls. 285-301

    Uploaded by

    苏建欣

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    CONCLUDING THE MEDIATION 1 §11.1 INTRODUCTION "hrm rslaton are more likely o honor he commitment they take" The way the process ends an also affec the part’ wllagets to eee ch oter i an agreements eached but future putes ate, se el ee Impediments to Closure. Usfrtnstely, te cd often comes ata pone when wither the pacicpans nor the mediator wing wo devote adioee ane sffor to wrap things up propery, These area lea thats asec ty wher eachig resol leaves the prints cy gods cy may no elf any farther procs atl maybe happy to dpens oak oh a be peeved as poscselement cust" in some earce ie nay ee Secon ater completing he hard emotions desnng wo es oe ord paticpnts maybe ied and elnga ifthe inne Wie cn Thi foo eslusion was reached ates who are ete any maybe n no moed to resuin inthe sate eooe with each ether ich es es te Overcoming These Impediments Elfstive mediators ry # work around ‘hese hurdles ad persuade the partie of the vale of leat sons some con roses. Hereaesmme ways meiatorscan make the ssa the laa Bring de paces back together. As we due Chapt tno cxtcused epatiaton, medatrsotenty wba se hel fonda chemthe chance oconstistsomethingtapeter chip ea tothe mata eating down with whi shy may have beg he poe Savor andcelbrate access. Ifa agroement reached, medatorsean yo Scesing the hard work and safes made by allinoled adhe wore final connection berween the prt in whch smal or Heat a couraged, perhaps while dovumens are being deaf, Nice peace sation, eeremonsl ml or one elbraton might een fe ake The mediator can herself devve ret station fom ee on of commemorate the thawing of damaged felingy or the cores ot ‘elaionsips or contain an expression of sinter apyrecat woth Imeliator by docu sumed acs, ese Emphasize che postive. When agroement has not heen ceached or when Tina jon seston —what has bon scicred. This ‘ew information that as lamed by enh of the partie and factual i Steet nt ay have been cad. The meat ny alo poet ont 511.3 FORMALIZING AGREEMENTS: IS A WRITING NEEDED? 1 a etngs the answer wil be clear th partie in ay thir oral agreement ted as judgment bythe cout alike mediation When his occ, ow shoul he media ry 1 ade t this le; No matter ow uch et pens 1 dome the parts eave without reducing ther agementsto some "Why? Because the absence of writing tan inveation fare apes. Even inthe best of faith, fe rcrores cs dell. a the specie commitments each side made In slton, paris lesvng without fonnal agreement in hand elten have cecond though abom the negated oe ‘come ora abject to" Monday maningquarterbackng by fen fam what was agreed iy Boome dst 511.4 WHO SHOULD DRAFT THE AGREEMENT? serecnet ht raced, Ever apt rom ne expert we baeve that should seo exrecontal ove the drafting prot Efe medio te an invitation to factor bickering, caecally when one ie ces hey commonly oe to “ake sings renter tonrladed They may have thei on peered language oka ‘ther standard tr oe ake professionel pide ihr owmdating aby They ‘maybe motivated by the dee oo tedioal lawyer eves to hei ches aera process in which, in pathy took s bak set When atone make cle it eae dafng the weit eel a lik choice but defer other wits.” Neverthe, even hee the potential for ‘second hough, hard memories and competitive amin (ot seeing) ha. ing the dating pins the wisdom ofthe m ding sel Having ty Pasta least an olin ofthe agreed term foe they leave theron nee ther an expectation tat there wll be a wsten etement arent that ee meatr wl draft In sone ofthese scting, the ase ora fhe feveloped mediation programs in specialized areas sometincs require the we of Frspioed forms contining sandal povaton hacan be filed in ot mid Where hiss no she an, wht priate sbould pide th 511.5 DRAFTING SETTLEMENT AGREEMENTS: PRINCIPLES AND OBJECTIVES The task of deafing 4 mediation agreement can sometimes be srsightorw Crain speements tain only spe exchange of promivy for fame, Mary Hs Diam ker tan 930 Ther seations however the task of prem defn canbe desepsively complex, expel for inexperienced meso ime limite the mediator ray te tempted to unc eigh onto patng words down om ppt comp asc Tow ofcontrace and espa choles eed oe huh th nora should the language be? How died fr general Towhat extent shoul the greemen ry toancpat things tha coud {Eo erong ia the fare? Answers the questions would se co depend on hy Penal audences foe te agreement and the eft diferent language choices parties themselves The language of the agreement they sign haste poeta fo stent govern ht fare ha thm monitor ech nce and avon farther dapat. From this pes ul Sc hat hetero she setienestsperncat should a and dear a posable The second pineal since fx cement isthe cour sme op thara port ter complain of noncompliance, Facing on this suience wel ako sem to pontin the detonof pong agrees hat ae song cag, ‘ndertandable, complete ad scaly capable of bing enforced, ‘Bor bighly deta language may be lc oda wer the presse of ealines, wth he parpans anos tobe de wth the eatin anon th ay. In addtn, he purs fen come with potential sien” adeno th : neat ad who ay ‘en ete rh highly specific ones? = you ate faniliar, Hee iva hypothe! sprecmentin the resin of Wilbon Settlement Agreement 2, The renovation wil be A Two-Stage Process of Agreement Drafting. There apy two sage tothe proces of drafting clement agreement The fis involves confirming td The First tage: Confem and Put into Words the Agrermeats That Have Already Been Reached. Typically, she mediator begins summatiing what the pans have aged oan bait thes confema She then age orambygunis so ast sep the psy ofa new round of ign Aiming for cat ao requre aeiinglfy langage and neces techoeal jargon. Inthe Wikon agreement atone. doe, the word profesional nTacgiaph 1 net thee sandra? How about wren iy? He i a al could each ofthese sentences be improved? What Jo You think aboot the use of the word cnadeaton in Paragrah SP Bespecfi. When the paris ed over a draft agreement hey shoul now wilh peccy who ol do whan wha sequence and ben, por ‘operational dts neo be tclded to proide guidance to he pater, rn avo fate daagoement In Wilson this woud certainly sec foe adding a date when the work wl en. Whae aout «staring tn ‘Should he "tee day” time Tout in Paragraph 2 he refined to spel vou” versus “clenar” days Does the history of he pate pt de ‘What about the particle the job left bedone and agtedo by th pats isalingthe countertop and tack ghtngs changing the ait Fixing the linoleum seam and son? Should thse al be dented Paragraph 1? I 20, bow? What about the spciics of dhe "yuaranee fered in Paragraph 3 1 these shoul be shed ut fn re deta, hove woul you doit theres poi at whch nereasng the eve of comctal ‘dea ops being hell and instead ks destroying any. evan mosphere ofan? Hv do you know when hat line bingapproached Uselanguage hats mutual pone, purponeal and personal, Agreements ould be framed in their most postive and balanced igh and should clade, where posable repost! promises bythe partes When are mens facade real commitments By all the patie no st one th Enhances thee apparent famene an eedvcs the tk of poet stlenen sareement. While necsnily general snd ‘hur not tle ‘What would you think of «preamble ro the Wi tat ther tend tbe aigationomcay ad ies Tather tha whit they will ot Jo-—andescores the Eeorebusons each wll make vo the fare rtonship and vide ny Inthe fi mone should generally be dated langage that looks forward, oe backward, especialy in ways tht might imply or assign blame forte evee that eto the conten (Given this guidance, how would you see the cond seotence of Paageaph 1 ofthe Woe daft? sth lngungenecsar? Could Se raed more efeciey? How? What about Targeapy #2 Finally, «personal, nonboreairatic one cane set by refering to the panies‘by name and eltonsip tthe conic rather ten or Deshaps in addition to} their offal "role n he peosdings (plain dant, complaining party, et}. The equicemens of reviewing ‘our or agency might hae soethig toy about ths In Wil, bg might he pres be eee too than at lif an "defendant The Sccond Stage: Strengthen the Existing Agreement or Accept It as “Good Enough"s 1 the bargaining has been tough Polouged or he agen fled to ienify importa es, the bse spreareereched hy the Parties maybe somewhat skeletal [This ca als ocut where He parses nese tions have been short ad amicable) Important ops overboke, ated ot incor assumed eo have ben snlad in the deal may only cet to the baipunts and the mediator once he drafting posts wars Geng eonerete shout the agreed general rr of has» tendency Wo fos the purslpons ‘ind on mising del However, each tinea nw and unsolved isintoducl nt the dralting proces ees he posiby of renewed agotations tht could jeopardize, Fragile peace. I she pares dn’ sugges ings sbowt new eens how ithe redaor to decide when tots "upseing the apie cat by nrodocing sade "onal isesor considerations? Ar wht pont could the med ee bes jobs ‘The Goal: Practical, Durable Agreements That Will Be Complied With, “To-us the mos importane consilertion i deciding whether tase ny new team sth extent ro which i offer the pony of engieang he ‘el by enhancing te Uktiood hat wl be honored eo scencason, In cvty Imelation, the mediators pmary gol shld be ty toctafta acca a

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