Mediators do not have laws and regulations to prove their legitimacy as judges do.
Instead, they must depend on their own neutrality and the voluntariness of the parties involved (Astor, 2007, p. 222). These two principles, combined with the mandate of confidentiality, allow mediations the chance to be successful. Should these elements not be in place the mediation would not be able to serve it’s definition; “a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision making by the parties to the dispute. Model Standards of Conduct, 2005)” In the Radix/Argyle case we see how the foundation of mediator neutrality, a mutual willingness or voluntariness to participate in the mediation, and an expectation of confidentiality led to a successful agreement that was better than the parties’ alternatives (Friedman & Himmelstein, 2008) Neutrality is one of the first responsibilities of the mediator in situations such as this. The principle governs a mediator’s relationship with the disputants.
The mediator should not expect to have any benefit from either party and should not have a past beneficial relationship with either party.Mediators serve to ensure the process is fair. When the mediator shows preference to one party over the other, in effect, he or she is now incapable of helping the parties to make their own decisions (Moore, 2003, pp. 53-54). “They must perceive that the intervenor is not overly partial or unneutral in order to accept his or her assistance (Moore, 2003, p.
54). ” In the Radix/Argyle case the mediator did maintain an appearance of neutrality and did not show an indication of preferring one side over the other.The mediator consistently spoke in an inclusive manner, using phrases like “both companies,” “you each,” and “ways in which you could cooperate with each other. ” At no point did the mediator indicate that one company was more at fault than the other. The plural you was always inferred, if not explicitly stated, in the statements that were given to the parties (Friedman & Himmelstein, 2008).
In addition to speaking to both parties in a plural sense, each was asked to participate equally. The mediator asked both parties to consider sharing future goals of the company, which was a large risk to both companies (Friedman & Himmelstein, 2008, p. 71). Had only one party been asked to share, this would have greatly reduced the credibility of the mediator.
As we turn to the next principle of voluntariness, the Radix/Argyle case is extremely apropos as an example. Radix and Argyle voluntarily selected to enter mediation because the risk of losing a costly court case was a real possibility for both parties. By seeking mediation, they indicated at least a partial commitment to reaching an agreement. In the definition of mediation itself we see that the goal is to “promote voluntary decision making.
” (Model Standards of Conduct, 2005).The fact that the decisions would be their own was emphasized from the beginning of the mediation with Radix and Argyle: At the start, the parties agreed to try the understanding based approach to mediation—to assume responsibility for resolving their conflict, to work together with everyone in the same room, to reach agreements about how we will work that make sense to all of the participants (including the lawyers), and to go beneath the problem to identify what is most important to both sides underlying the problem (Friedman & Himmelstein, 2008, p. 73). Parties must feel that they are in control of the decision-making process and that no suggestions from the mediator will be forced upon them. When parties voluntarily enter into the process and are responsible for making their own solutions, with help navigating the conflict by the mediator, they are more likely to stick to the agreement that is reached (Rubin, 1994, p.
226). The mediator in this case made strong suggestions to the parties that were very pointed and specific, but the choice was always there for each to cooperate.When the mediator suggested that the companies both share their future goals, the option was there to refuse (Friedman & Himmelstein, 2008, p. 271). For example, when the mediator said “Of course you needn't disclose anything that doesn't make sense to you (Friedman & Himmelstein, 2008, p. 271)” the atmosphere of voluntariness was reinforced.
If the mediator had instead placed strong pressure on the parties to divulge the information, the willingness of the parties to participate could have evaporated.Instead the mediator gave several responses to their concerns that reinforced their ability to say no and allowed the parties to consider the benefits of the risk. When the mediator said, “To put it simply, if you reveal your real interests to each other, we might find a solution that would be better for both of you. That's what you need to think about (Friedman & Himmelstein, 2008, p. 271)” he gave a clear reason why his suggestion should be considered, without putting pressure on the parties.In my opinion, this increased the credibility and trustworthiness of the mediator and allowed the parties to consider the proposal and approach the next mediation session prepared to share appropriate sensitive information.
The mediator in this case was also adept at making it easy for the parties to say yes to considering new possibilities, such as having the technical teams of both companies work together to find projects that would create value.The parties initially balked at the idea due to the history of fighting between the teams, but because of the reframe created by the mediator, the parties were once again given free will, but also insight as to how the mediator’s suggestion could work through the following exchange: Mediator: Suppose you gave them specific instructions that their job would be simply to create new ideas of how the companies could cooperate In fact, for this purpose they could imagine that they were all working for the same company, as if the two companies had merged.Radix CEO: That might work. We would have to make clear that they have no responsibility for deciding how to implement the ideas. Mediator: Right. Ultimately the two of you with your management teams will have to make those decisions, particularly when it comes to dividing the profits for any new ideas (Friedman & Himmelstein, 2008, p.
272). However, even though the mediator did an excellent job at navigating the territory of offering suggestions that could lead to a solution, a dangerous territory was entered by doing so.There are strong reasons to be wary of offering suggestions for solutions, such as having blame placed on the mediator if the agreement fails, making the parties feel unintelligent, and if the mediator is the one thinking of solutions the parties may not engage in thinking and looking for solutions (Rubin, 1994, p. 226).
The mediator walked this fine line. Considering the mediator’s suggestions were geared towards having the parties think and run the exercises themselves, the pitfalls were successfully avoided. The final principle to explore is that of confidentiality.Mediators should go into a mediation knowing their policies on confidentiality. There are certain guidelines to consider when making their policies.
For instance, all but absolutely crucial notes should be destroyed once the mediation is over, names of the parties should not be used outside of the sessions, always ask for written permission if you would like to use a case for research or publication, turn down mediations for conflicts you do not believe should be kept secret, and tell any referring sources only if a mediation took place and if an agreement was reached (Rubin, 1994, p. 09). The account of the Radix/Argyle mediation case did not go into detail on the mediator’s confidentiality guidelines but the principle was especially crucial in the Radix/Argyle case. The parties voiced apprehension about sharing their plans with each other (Friedman & Himmelstein, 2008, p. 271). Their concern would have been exacerbated further had the mediator’s commitment to confidentiality been in question.
Since both companies had a lot at stake in the marketplace, it was important that competitors not receive information on the mediation. Even with the confidentiality maintained, the parties had to “navigate the perceptions from competitors on their new-found cooperation (Friedman & Himmelstein, 2008, p. 273). ” By examining the mediation of Radix and Argyle the principles of neutrality, voluntariness and confidentiality have been defined, explored and applied. We see how each played an integral role in contributing to the success of the mediation.Based on the points outlined in this paper it seems that all principles were appropriate and applied correctly in this instance, even if the mediator walked a fine line in the area of voluntariness when it came to offering suggestions.
Examples of each principle and how it applied to this specific mediation allow for us to see how they can be adeptly put into practice in a concrete way as we navigate the field of mediation. References Astor, H. (2007). Mediator Neutrality: Making Sense of Theory and Practice.Social & Legal Studies , 16 (221), 222.
doi: 10. 1177/0964663907076531 Friedman, G. , & Himmelstein, J. (2008). Radix and Argyle: From Interests to Options and Creating Value at the Options Stage, Challenging Conflict: Mediation Through Understanding.
Chicago: ABA Publishing. Model Standards of Conduct for Mediators. (2005, September 8). American Arbitration Association. Retrieved October 24, 2011, from http://www. americanbar.
org/content/dam/aba/migrated/dispute/documents/model_s
