Global Issues in Mediation
Authors:
Nolan-Haley, Jacqueline / Deason, Ellen E. / Gonstead, Mariana Hernandez-Crespo
Edition:
1st
Copyright Date:
2019
12 chapters
have results for negotiation
Chapter 8 Peacemaking Mediation 265 19 results (showing 5 best matches)
- The hallmark of NLP mediation is a mediator whose primary role is to help the parties in their own communication and negotiation. This form of mediation is typically an extension of the parties’ own bilateral or multilateral negotiations, rather than a forum in which the mediator tries to browbeat the parties into agreement, or to push through solomonic judgments.
- The multi-party talks began with the development of a set of rules of procedure, which took almost two months to put in place. By July 1996 there was agreement on the rules of procedure, which included provisions dealing with non-compliance by a party with respect to the conditions for entering into the talks, the formula for voting on proposals, and the confidentiality of the talks. A period of several months then followed to develop a very brief and general agenda for the opening plenary session, and on October 15, agreement was reached. Once a general agenda had been established, substantive negotiations could begin, taking place along three tracks or strands. However the issue of decommissioning—Unionists wanted paramilitary arms to be given up before negotiations could begin—arose postponing substantive negotiations for some months.
- Throughout the negotiations, Senator Mitchell and his colleagues paid a great deal of attention to the importance of symbols, appearances, and ways to facilitate communications. For example, while most of the negotiations took place at Stormont, a suburb of Belfast, they were commenced in an undistinguished government office building rather than the building from which a Protestant-dominated Parliament once governed the North. Similarly, when some of the negotiations left Belfast, they were held in both London and Dublin so that both communities would not see a tilt in favor of the other. Care was also given to limiting the number of people who would be present at key meetings in order to encourage dialogue, and also to whether the presence of a stenographer or note taker might chill discussion. As the negotiations entered 1998, the agenda became more specific and the meetings more frequent with a deadline imposed to build a momentum toward an agreement. Senator Mitchell expressed...
- Mediation is part of a wide spectrum of processes for peacemaking and diplomacy. Negotiation between diplomats is the classic example of preventative diplomacy. There is also the practice of Track II negotiations between non-official but influential members of a community who are able to facilitate dialogue among parties in conflict. Arbitration has been used successfully in resolving international boundary disputes. Transitional justice approaches have elements of mediation, working with victims, offenders, and the community. Finally, consensus building processes in the public sphere rely in part on mediation approaches to identify positions, interests, and values of different stakeholders.
- Mediators should make every effort to insure that all stakeholders are represented at the table, whether or not all stakeholders recognize the existence of the other. Comprehensive inclusion helps to achieve a durable agreement. A good example of an inclusive model of negotiation is the approach of the Women’s Coalition Party in the mediated negotiations leading up to the Good Friday/Belfast Agreement in 1998. The Women’s Coalition Party insisted that all stakeholders be included at the table, including paramilitary parties. This approach differed from that of many other political parties who argued for the exclusion of certain groups from the peace talks, and then refused to speak with them when they were present.
- Open Chapter
Chapter 1 Mediation Overview 1 8 results (showing 5 best matches)
- We earlier defined mediation as an extension of the negotiation process in which a neutral third party assists disputing parties in resolving or managing their disputes. The role of the mediator is essentially to facilitate and help design the process for the parties’ negotiations. The following excerpt expands upon this understanding of the mediator’s role. (See Chapter 3 for a discussion of the role of co-mediators)
- The introduction of technology into the design of the process in the form of the technological ‘fourth party’ has both generated completely new types of processes unimaginable in the face-to-face era and separated some familiar dispute resolution processes from qualities and traits previously considered significant, if not essential, to their design and operation. A clear example of a new process is the emergence of automated and technology-assisted negotiation/mediation approaches, which include problem identification processes (eBay), mechanisms for matching problems and solutions (SquareTrade), automated negotiation support systems (SmartSettle) and blind bidding tools (CyberSettle). These processes escape previously accepted clear-cut distinctions between direct negotiation and third-party dispute resolution, giving rise to another
- A facilitative mediator assists parties with their communications and negotiations. The mediator’s strategies are designed to help parties identify the issue in dispute, understand their real needs and interests, and formulate options for settlement. Several models have emerged along the continuum of the facilitative mediation framework.
- Other party is engaging in bad faith negotiations
- Consultation is a preliminary form of negotiation in which parties discuss issues and exchange views. Professional writings increasingly recognize consultation as a process for resolving disputes relating to the interpretation of treaties or as a pre-negotiation phase in the settlement of disputes. Most recently, the use of consultation has increased with the growth of international trade. For example, the four part Dispute Settlement system of the World Trade Organization (WTO) begins with a flexible consultation process conducted by the parties. The purpose of consultation is to help the parties resolve their dispute by giving them a better understanding of the conflict and the legal claims on both sides. WTO statistics show that more than half of the cases are either resolved, settled, or abandoned at the consultation phase.
- Open Chapter
Chapter 5 Ethical Challenges 157 8 results (showing 5 best matches)
- Empirical studies show that cultural differences result in different attitudes about ethical negotiating behavior. For example, research conducted by Rivers and Lyte discuss what they describe as “ethically ambiguous” negotiation tactics which they define as “maneuver[s] used in the course of a negotiation that may be regarded as wrong by at least some individuals who participate in or observe the negotiation.” Two examples offered by the authors are falsely promising to reward the other party at a future time, and offering misleading information to support your case. Recalling the material in Chapter 3 on culture, and given the differences among cultures do you think it is possible or even advisable to have uniform ethical rules regarding truthfulness in international mediation?
- Once given, consent may later be withdrawn, especially when there are differences within a party. Armed or political groups may splinter, creating new pressures on the negotiations process. Some splinter groups may pull out of the mediation all together and seek to derail the process.
- The fourth party also enables mediators to modify their behavior. Mediators may conduct concurrent caucuses simultaneously with a joint session, avoiding parties’ frustrations with the amount of time a mediator may spend with others or interruptions in the flow of negotiations.
- In mediation practice, the principle of informed consent is not an end in itself but is a means of achieving the fundamental goal of fairness. Fairness requires that parties know what they are doing when they decide to participate in mediation, that they understand all aspects of the decisionmaking process, including their right to withdraw consent and discontinue negotiations, and that they understand the outcome reached in mediation. Toward this end, the principle of informed consent in mediation protects the psychological and legal interests associated with the values of autonomy, human dignity, and efficiency.
- ...the mediation agreement. On the one hand, the focus of the code appears initially to lie with questions of procedural fairness. One section entitled “Fairness and Integrity of the [P]rocess” requires the mediator to “conduct the process with fairness to all parties.” This requirement is further explained as ensuring the parties have an opportunity to be heard, be involved in the process, and consult with legal counsel. However, there is no corollary requirement that mediators attend to the terms of the agreement being discussed. However, the Code does vest the mediator with some duties of assessment in a provision discussing termination of the process. Like the Australian Code, the IMI Code provides that the mediator “may withdraw from a mediation if a negotiation among the parties assumes a character that to the mediator appears unconscionable or illegal.” Obviously, this last provision vests the mediator with the authority and the burden to determine when suspension,...
- Open Chapter
Chapter 4 Legal Issues and Regulation of Mediation 105 7 results (showing 5 best matches)
- [Parties] should not be discouraged by the knowledge that anything that is said in the course of such negotiations . . . . may be used to their prejudice in the course of the proceedings. They should . . . . be encouraged fully and frankly to put their cards on the table. . . . . [T]he public policy justification in truth, essentially rests on the desirability of preventing statements or offers made in the course of negotiations for settlement being brought before the court of trial and submissions on the question of liability.
- Without prejudice rules for negotiation have been applied to mediation in a number of common-law jurisdictions, including England, Australia, and Hong Kong. In essence, courts in these countries treat mediation as a “form of assisted without prejudice negotiation.”
- UNCITRAL Negotiations on an International Instrument
- In some common-law countries, statements made in settlement negotiations are protected by the common-law doctrine of “without prejudice” that protects both written and oral settlement communications from disclosure. This rule, which is considered a type of privilege, governs the admissibility of evidence and rests on the public policy of encouraging settlement. An English court described the reasoning behind the doctrine as follows:
- while their relationship is positive. While arbitration has been the traditional choice in international commercial endeavors, parties are now turning more frequently to mediation or to combinations of mediation with other processes. Parties are choosing to combine mediation with arbitration in hybrid processes or agreeing to multi-tiered dispute resolution clauses that include negotiation or mediation as the initial consensual step in a multi-step process. Chapter 6 explores combining mediation with other processes in more detail.
- Open Chapter
Chapter 7 International Mediation in the Context of Investor-State Disputes 225 10 results (showing 5 best matches)
- It is essential, though, to consider mediation in context, and this requires a brief discussion of the other procedures available to investors and states. Generally, three such procedures come to mind—negotiation, conciliation, and arbitration. The mediation model. . . . offers something new in comparison to these procedures—a third party’s assistance in facilitating the parties’ communication, information-sharing and negotiation and an explicit opportunity to identify and focus on the discussion of interests. . . . .
- Negotiation, Mediation, Dispute Prevention Policies, etc.
- To resolve a dispute, disputants can theoretically resort to one of four basic dispute settlement processes. These four basic processes, with numerous variations, include: (1) negotiation, whereby the parties themselves through direct discussion of their conflict agree to settle their dispute, a process that sometimes results in a renegotiation of their underlying transaction or relationship; (2) mediation (often referred to as “conciliation” in international business and investment disputes) or other forms of voluntary third- party intervention, by which a non-disputant third person assists the disputants to resolve their conflict; (3) arbitration, by which the parties to the dispute agree to submit their dispute to a third person for a decision and to abide by that decision; and (4) adjudication by a court of law or some other governmental authority. . . . . [T]hese four dispute resolution processes form a continuum from negotiation on the one hand to adjudication on the other.
- As the only realistic adjudicative and viable dispute resolution method in treaties, it is unsurprising that investors and counsel focus on arbitration as the primary conflict management method. There are, however, a suite of options, including ombuds, negotiation, early neutral evaluation, fact-finding, mediation, or the small claims facility discussed earlier.
- In sum, the findings of our research tend to support three key ideas. First, the fact that substantial negotiation activity is already occurring in investor-State arbitration supports the notion that the very availability of compulsory arbitration, and in particular the prospect of facing an adverse award, increases the possibility that respondent State governments will seriously consider amicable settlement, as an option to resolve a dispute with affected investors. Second, the gradual development of a body of jurisprudence interpreting international investment law over the past two decades seems to have contributed to assisting the parties in better assessing the probability of getting a favourable award, and pursuing more informed settlement negotiations.
- Open Chapter
Chapter 6 Combining Mediation with Other ADR Processes 181 10 results (showing 5 best matches)
- actively participating in settlement negotiations with the parties
- suggesting settlement negotiations to the parties (40% East Asia; 16% West)
- regularly participating in settlement negotiations (30% East Asia; 16% West)
- where requested by the Parties in writing, offer suggested terms of settlement as a basis for further negotiation;
- International arbitrators can safely encourage parties to settle. They can suggest that parties consider settling or trying mediation with another neutral of their choice. When taking these initiatives, arbitrators stay out of direct participation in settlement negotiations.
- Open Chapter
Index 347 3 results
Chapter 3 The Role of Culture in International Mediation 63 10 results (showing 5 best matches)
- These differences create enormous challenges to consensual resolution of disputes through negotiation and mediation.
- Negotiation and Mediation
- Re-negotiation is possible
- Parties usually find themselves in mediation when they are unable to overcome an impasse by themselves. A failed negotiation, a contractual agreement, or legal authority can channel conflicts to the mediation process. It is in this context that effectively addressing culture—especially in international settings—becomes critical. Increasing the parties’ and mediator’s awareness of the impact of culture can not only deepen the understanding between the parties to help them reach an effective resolution, but it can also potentially strengthen their relationship.
- Our cultural identity is formed by the impact of the cultures to which we belong. As such, the influence of our primary culture predetermines what cultural tendencies are familiar and which are unfamiliar. In the following excerpt, John Barkai shares the struggles of a mediator wrestling with her or his own cultural identity. He explores the origin of these limitations, and suggests that our abilities to operate within one culture, presupposes the inability to operate within a different culture. In a series of tables, he highlights these cultural differences, by comparing the tendencies of low-context and high-context cultures, and also contrasting the cultural differences between Western and Asian cultures in negotiation and mediation. This visual representation emphasizes how profound cultural differences are, and why the identity of the mediator is important and needs to be a part of the decision-making process.
- Open Chapter
Chapter 9 Case Studies 297 5 results
- Second, civil-society actors have a vital role to play in the dialogue; even if involving them intimately in the negotiations around the table is not always practical, their consultative involvement early on helps shape the process in a way that ensures that the people have a voice and that the necessary pressure is put on the government during the implementation phase. In Kenya, the active involvement of the media, religious groups, business communities, and peace activists was crucial for creating an atmosphere that was conducive to fruitful negotiations and for generating that vital link between an elite-level process and the grass-roots realities, to avoid disenchantment or dangerous disconnect. Civil society engagement can be fostered and encouraged actively by mediators willing to take the time to listen to their views and engage them in the process where possible and appropriate.
- Fifth, an emphasis on pragmatism can help overcome political differences. Turning political questions into technical ones, postponing divisive debates over appellations, and focusing on practicalities rather than the “big picture” can all be useful strategies in helping negotiators to work as a team and to put peace before political aspirations or concerns. In Kenya, the use of technical experts—be they humanitarian, electoral, legal, or political—was an essential part of helping the parties to understand which solutions were feasible given the explosive environment in which they were operating; they also helped orient the parties to a problem-solving framework and away from adversarial negotiation strategies.
- On February 28, 2008, after six weeks of intense negotiations between the opposition Orange Democratic Movement (ODM) and the Government of Kenya’s Party of National Unity (GoK/PNU) and a five-hour “end-game” with the principals, President Mwai Kibaki and the Honorable Raila Odinga, an Agreement on the Principles of Partnership of the Coalition Government was signed. For many, this was a triumph of African diplomacy, for some, it was the first realization of the international community’s “responsibility to protect” (RtoP), enshrined in the 2005 World Summit Outcome Document, while for others, it was the avoidance of another genocide on African soil. It is impossible to know in exact terms what was prevented or what might have been, but all the warning signals indicate that a failure to solve this crisis may have resulted in significantly more violence, bloodshed, and loss of life, with huge implications for the entire region.
- When the Chairman of the Panel, Kofi Annan, said farewell to Kenya on March 3rd, six long and difficult weeks had passed. But this was only the beginning of an even longer and more difficult road ahead toward sustainable peace in Kenya. The technical elements of agenda item three were left in the hands of Attorney-General Amos Wako and a team of lawyers whose job it was to draft the necessary bills for the implementation of the power-sharing agreement into law, and 2 billion Kenyan shillings were pledged by the US in support of the speedy implementation of the agreement, in addition to the Sh1.75 billion already pledged by the US toward reconstruction. The negotiations over the root causes of the crisis, however, were left in the hands of Nigerian Foreign Minister Oluyemi Adeniji, who was tasked with addressing the last item on the agenda: the land issue, historical injustices, the cycles of dispossession, and the steps needed to move toward reconciliation.
- ...negotiations are a process, rather than an event—and that the process is owned by the parties themselves—is integral to a holistic approach to peacemaking. Expectations can be managed more fruitfully if dialogue is engaged in as part of a process, rather than simply a political exercise or event; the process has its own inherent worth, and trusting that the process will be constructive also means being patient. The Panel reminded the parties to have patience when they appeared frustrated, and reminded them of progress already made when they were despondent; similarly, the Panel was flexible and open enough to see the talks as a process, one which needed their full engagement if they were going to succeed. Annan’s decision to stay was part of this realization and certainly helped the parties to realize he was certainly not in transit, but as much a part of the process as the parties. That said, while the mediator is a part of the process, the process always belongs to the parties...
- Open Chapter
Acknowledgments v 1 result
- Amy J. Cohen, Debating the Globalization of U.S. Mediation: Politics, Power, and Practice in Nepal, 11 Harv. Negot. L. Rev. 295 (2006). Please note that the copyright in the Negotiation Law Review is held by the President and Fellows of Harvard College, and that the copyright in the Article is held by the Author.
- Open Chapter
Chapter 2 Court-Connected and Mandatory Forms of Mediation 29 7 results (showing 5 best matches)
- A confusion in the role they play may arise for judge, lawyers, and parties when the judge in charge of the negotiation process decides the case if it is not settled. How will a judge decide a case based on its legal aspects alone after urging the parties to observe their interests and not their position? How can the judge reduce the pie just trying to extend it? The judge—and everybody else—is expected to forget and simply dismiss everything said during the negotiating rounds to be able to perform ordinary function.
- parties attend and contribute to the discussion either directly or through their attorneys. The parties thus are not forced to rely blindly on their attorneys to conduct separate, bilateral settlement negotiations.
- ...to make significant voluntary use of mediation, courts made the process mandatory. Thus, citizens lost the ability to decide for themselves whether or not to try mediation. As attorneys have become more frequent participants in mediation sessions and have assumed responsibility for selecting mediators, the process has become less focused on empowering citizens and more focused on forcing these citizens to confront and become reconciled to the legal, bargaining and transactional norms of the courthouse. Attorneys select fellow attorneys as mediators and especially value those who possess substantive expertise and the ability to value cases and conduct “reality testing” with the parties. Many of these mediators maximize their own influence by minimizing the time spent by the parties in joint session. These mediators quickly separate the parties and become their sole channel of communication and negotiation, shuttling back and forth with the information and descriptions of offers...
- In her study of Ontario litigators, Professor Julie Macfarlane found that rather than using mediation to try to reach a settlement in good faith, some lawyers use mediation to make misleading statements, “ ‘smoke the other side out,’ ” gain leverage for later negotiations, drag out litigation, increase opponents’ costs, and generally wear down the opposition. Bad-faith tactics include purposely wasting time and money to demoralize parties less able to afford litigation. Attorneys can do this while using mediation jargon and creating phony issues to appear sincerely interested in settling the case.
- A fourth, and obviously important, factor is the judge’s knowledge of the law. While this, too, flows from the judge’s experience, this knowledge goes beyond simply discerning how to handle parties to a dispute. Judges have an understanding of legal issues that permits them cogently to focus on the issues underlying the dispute and to bring these to the fore during discussions between the parties, even if this necessarily must stop short of expressing an opinion on the case. In this way, the presence of a judge provides the ideal foil to agency costs and efficiency losses between the parties and their attorneys by providing an experienced supervisory presence during the negotiations.
- Open Chapter
- Publication Date: June 10th, 2019
- ISBN: 9781683286196
- Subject: Dispute Resolution
- Series: Global Issues
- Type: Global Issues
- Description: This book is an essential read for mediators, arbitrators, students, attorneys, policy makers, business people, and other professionals involved with cross-border interactions. It provides a comprehensive and cutting-edge overview of topics that are essential for informed decision making about resolving disputes in our global landscape. Although arbitration has traditionally been widely-used to resolve disputes internationally, mediation is increasingly considered an attractive option that gives parties control over the process they use and the outcome they decide upon. The book covers the latest developments in court-connected and mandatory forms of mediation, cultural considerations, legal issues and regulation, ethical challenges, combining mediation with other processes, mediation of investor-state disputes, innovative trends in process and system design, and peacemaking mediation. The book is designed to stand on its own or provide a supplement in traditional dispute resolution courses. It is appropriate for those who want an introduction as well as for those seeking insightful analyses of the most recent developments in the field.