MEDIATION & DISPUTE RESOLUTION This re

MEDIATION AS A FORM OF DISPUTE RESOLUTION

This research paper discusses mediation as a form of dispute or conflict resolution, the powers a mediator must have, the steps he or she is likely to take and the skills a mediator should have in dealing with and facilitating the resolution of such disputes.

Nature of Mediation and Powers of Mediators

Hoffman (1994, Winter) defined mediation as "a process whereby a neutral third party assists disputing parties reach a mutually acceptable decision" (p. 848). The term mediation comes from the Latin verb mediare, to be in the middle. According to Folberg and Taylor (1984), "mediation is an intervention that is intended to resolve disputes and manage conflict by facilitating decision-making" (p. xi). Marcus et al. (1995) said the man or woman in the middle, an impartial mediator, "has no power to impose an outcome upon the parties, [rather he or she helps] them to better understand their options, choices, and consequences" and "serves as a catalyst for settlement" (p. 324). Folberg and Taylor noted that mediation is "a process that emphasizes the participants' own responsibility for making decisions that affect their lives . . . [and is] self-empowering" (pp. 7-8).

Mediation differs from other forms of alternative dispute resolution (ADR) in several respects. In litigation or in arbitration, a third party, a judge, jury or arbitrator, decides the issues in dispute. However, as noted above, "in mediation the mediator is not empowered

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ee proven active listening techniques are framing and reframing what the speaker says, asking questions and validating (without approving or disapproving) the speaker's feelings. Step 3 is known as the setting the agenda stage. Here the mediator plays an active role in clarifying and establishing with the parties the outstanding issues which need to be discussed and resolved and obtaining their agreement on the content of the agenda and the priority of the items on it. Step 4 is the brainstorming or problem-solving negotiations stage. In this phase, the mediator is active, not in suggesting ways in which the parties can break the impasse between them, but in eliciting from them their ideas how this can be accomplished. Participants unfamiliar with mediation are used to approaching conflict from the standpoint of positional bargaining, which R. Fisher and Ury (1991) described as follows: "each side takes a position, argues for it, and makes concessions to reach a compromise" (p. 3). They approachtheir position from the standpoint that it is the only right one, and they are determined, insofar as possible, to 'win.' Marcus et al. said that such "adversarial methods derive from our instinctual drive for self-preservation" and are

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