I've been discussing the "what" of mediation. What kind of disputes are ripe for the process? In my last posting found here, I identified some very interesting disputes that a court or the parties have sent to mediation.
Hal Abramson, the author of Mediation Representation: Advocating in a Problem-Solving Process, suggests that certain types of disputes are especially amenable to mediation:
· When the parties have conflicting views of the facts or law;
· When a party needs to express strong emotions;
· When a party craves the opportunity to be heard directly by the opposing party;
· When clients or their lawyers can no longer effectively communicate with each other without the assistance of a skillful mediator;
· When the parties are not skillful negotiators and need the process structure and negotiation expertise provided by a mediator; or
· When a conflict exists between a party and his or her attorney.
Christopher Moore -- a partner in CDR Associates, a mediator since 1979, and author of The Mediation Process: Practical Strategies for Resolving Conflict– would also consider these factors:
· The intense emotions of the parties prevent a settlement;
· Poor communications -- in quality or quantity -- between the parties make it difficult for them to change the situation on their own;
· Misperceptions or stereotypes hinder productive exchanges;
· Repetitive negative behaviors create barriers to settlement;
· Disagreements over data hinder its collection and evaluation;
· Multiple issues in the dispute keep the parties from agreeing about the order and combination in which they should resolve the issues;
· The parties perceive their interests as incompatible;
· The parties have no negotiating procedure, they use the wrong procedure, or they use a procedure without skill;
· The parties have no acceptable forum for the negotiation;
· The parties have difficulty starting the negotiations; or
· The parties have reached impasse in the unfacilitated negotiation process.
I would add to this list cases in which the parties:
· Need to protect -- in a confidential process -- reputations, good will, trade secrets, or a good name;
· Seek to avoid the emotionally and psychologically exhausting process of litigation;
· Seek to avoid the distraction –especially in a business setting – of ongoing litigation;
· Seek to avoid the expense of litigation;
· Need a much quicker resolution of the dispute;
· Cannot accurately predict the outcome at trial;
· Desire to maintain control over the dispute resolution process design;
· Need more than an award of damages or an injunction as a remedy;
· Seek some sort of compromise solution rather than a win-lose outcome;
· Desire to maintain control over the outcome;
· Seek to avoid the decisions of a potentially biased adjudicative neutral; or
· Cannot afford the expense of skillful and higher-paid lawyers, expert witnesses, or other representatives in litigation.
Still other authors identify those attributes of a dispute or of the parties that will make mediation more successful. They include: a positive state of mind; good faith; adequate settlement authority; flexibility; patience; realistic expectations; preparation; a willingness to listen; an effective negotiation strategy; creativity; and honesty.
Still other authors identify those attributes of a dispute or of the parties that will make mediation more successful. They include: a positive state of mind; good faith; adequate settlement authority; flexibility; patience; realistic expectations; preparation; a willingness to listen; an effective negotiation strategy; creativity; and honesty.
In my next posting I will discuss disputes that are less suitable for mediation.
Photo provided, with permission, by Chris Jones, Harlan, KY.
Sem comentários:
Enviar um comentário