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Handling mediation where parties can no longer talk to each other

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Handling mediation where parties can no longer talk to each other
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  Handling mediation where parties can no longer talk to each other  By: Ms. Winfrida B. Korosso Date of Submission: 24 TH  JANUA! 2"#4 1  #." $NT%DU&T$%N This paper endeavors to narrate and share possible actions that a mediator should undertake, once there is an impasse in the mediation process being facilitated. Mediation, as we understand it, is a process that employs a neutral impartial person or persons to facilitate negotiations  between the parties to a dispute in an effort to reach a mutually accepted resolution. Mediation is a process close in its premise to negotiation: “mediation is an assisted and facilitated negotiation carried out by a third party”  Goldberg et al.., 1992 !.Mediation, in another tenor refers to a process through which a third party provides procedural assistance to help individuals or groups in conflict to resolve their differences. Mediation is a voluntary process and its success is linked to the vesting decision making authority in the parties are involved in   Moore, 1996  !. Mediation process typically starts with an introduction which includes among other things, a description of the process and ground rules which provide  behavioral guidelines for the participants. "arties are then, given an opportunity to present their understanding of the conflict. #fter this, a list of issues is created and an agenda is devised to guide parties through the resolution process. #s specific solutions are reached, parties are asked to confirm their acceptance. 2."   %'( %) TH( M(D$AT%  The mediator is a neutral impartial person to facilitate negotiation between the parties to dispute in an effort to reach a mutually accepted resolution.   Ackland, 1990 !. The mediators who are hired, appointed or volunteer to help in managing the process should have no direct interest in the conflict and its outcome and no power to render a decision. They have control over the  process, but not over its outcome. "ower is vested in the parties, who have control over the outcome$ they are architects of the solution.The mediator%s role are multiple to help the parties think in new and innovative ways to avoid the pit falls 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 2  general to steer the process away from negative outcomes and possible break down towards &oint gains.# mediator should study the substance of the dispute, and try to identify the issues in conflict, using tools such as re'framing, active listening, open'ended (uestions and his or her analytical skills.   Andry,1993 !. ) mpasse  occurs in mediation when neither party is willing to compromise any further on an issue. *hen parties reach impasse, they%re likely to regard it as the end of negotiations. They may tell themselves that they tried their best and tell each other, “)%ll see you in court+” #s a mediator, however, you know this is &ust the beginning of negotiations. This is where you thrive. #."%*(&%M$N+ N% TA'K ,(&$N&T $N M(D$AT$%N #t any stage of the mediation, parties may become deadlocked over an issue which stalls the  process, below are some suggestions on how to break an impasse . #n  Impasse  is also referred to as stalemate, deadlock, or getting stuck''occurs for a variety of reasons, but primarily it occurs when the parties are unwilling or unable to identify options and make concessions to each other. odney Ma- /0!, states that many of the techni(ues for breaking through impasse are related to fundamental negotiating skills, that is, asking diagnostic (uestions, anchoring, framing, reframing, pitching offers and counter offers, bracketing, making concessions, and asking for reciprocity. 1ut the mediator needs to know how to apply these skills in the conte-t of impasse. *hen this situation occurs the mediator has a number of options: • The mediator has to bring pressure on the parties by imposing deadlines. • )n multi'party disputes, the mediator creates subcommittees to work on issues in a new and  potentially less adversarial atmosphere. • )f appropriate, a mediator has to conduct supplementary private meetings only with the  principal negotiators form each side to discuss ways to resolve the impasse. These are typically referred to as sidebar meetings. These meetings must be done carefully and 3  e-plained in advance, so that other members of the negotiating teams do not lose confidence or trust in the process. • )n caucus, the mediator could re(uest that the 2inflated2 party provide evidence supporting his3her power position. The mediator, serving as an 2agent of reality,2 could present the  party with a realistic assessment of the power in the situation. The mediator could also indicate with permission! that the other party cannot offer more and such persistence could destroy the mediation driving both parties to the unsatisfactory status (uo. • #gain while in caucus the mediator could provide the party with a rationale for shifting a  position. 4uch shifting is basic to negotiation, i.e., a change in position demonstrates fle-ibility and good faith. Mediators have also been known to float an agreement that is likely to be accepted by both parties. ather than risk the loss of face, the parties need only adopt or modify the floated agreement. • The parties could be asked to review their srcinal reasons for entering mediation e.g., to resolve the dispute$ to avoid the unpleasant status (uo!. "erhaps the vision would be rekindled. #lso, the mediator might ask the parties to complete an 2impasse checklist2 see attachment! in which they identify causes of the impasse itself. #fter comparing responses, the mediator reveals the parties5 similar and different perceptions. The mediator could initiate a discussion about the impasse resulting in clarified perceptions$ hopefully, the reorientation will motivate the parties to continue negotiating. 6n one occasion both parties checked the item, 2could not generate options2 which led to a creative discussion of options. • #nother option to be done by the mediator is to “hold off the record”. 4imilar to sidebars, these encounters are meetings that don%t ever official happen and are not considered part of the regular negotiations process. They may be held with principals only or with select individuals. They offer a more informal means of communication than the more formali7ed mediation process.8astly, the mediator has to temporarily break'off negotiations. #d&ourn the process to allow for a cooling down period and then bring the parties back together. 4  4." &%N&'US$%N )n mediation, you%re working with individuals whose motivations may appear obvious on the surface but whose thinking is idiosyncratic, unpredictable, and often downright peculiar. The issue is to remember that while you can%t read minds, but you can ask (uestions. #sk  probing, diagnostic (uestions to gather the information and insight you need to break impasse. "arties call on the mediation process anticipating that a third person is necessary to help the parties do what they can not otherwise do. 1reaking impasse is the most vital role a mediator can be called on to achieve. The parties must be patient with both the mediator and the process so as to be able to look for such opportunities at the right time in the right way. "remature efforts to break impasse will result in failure. #llowing the parties to define their own impasse and then be prepared to do something about it is vital. 6ne can learn from what "age 9 outlines in his article that it is important for the mediator to remember to establish the distinction between breaking impasse of the process and breaking impasse of the negotiations. Te mediator!s ability to break impasse o" process or negotiations at te rigt time in te rigt #ay is te key to a s$ccess"$l mediation. ()((N&(S 0.#ckabdm #. 0;;/!,  Managing con"lict Tro$g Mediation , Hutchinson 1usiness, 8ondon..Mark # 0;;<!,  %ractical %eace Making  , # Mediators Handbook, =enwyn, >uta. 3. Ma-  # /0 !, 1reaking the )mpasse “The ?ni(ue Mediation 6pportunity” "rofessional Mediation )nstitute @olume A)) retrieved from w ##.la#.$"l.ed$&'pd"&...&()*A+IG'T-*'IM%A*'Article.pd"  5
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