Is Mediation Simply Supervised Negotiation

Mediation vs. Negotiation

We will commence the definition these two concepts of in terms of BMO5567- MANAGING WORKPLACE CONFLICT and therefore beginning with an explanation of conflict. "Conflict can be described as a state of human interaction where there is disharmony or a perceived divergence of interests, need or goals. There is a perception that interests, needs or goals cannot be achieved due to interference from the other person or people." (Hubbe 2009). Conflict can arise in any situation where at least two people are interacting; the workplace being one of them. When conflict does arise, there are many different techniques which could be used to reach a resolution; this paper will focus on just two of these techniques.

Mediation

Mediation can be defined as "the engagement of a third party to help resolve a settlement or dispute" (Mediate 2011). The outcome of mediation is non-binding meaning the individuals do not have to accept the settlement offered. However, it could be argued that in order for mediation to be considered successful both parties need to agree on the outcome. Mediation is also voluntary and no one party should be forced into it. Having a forced situation could negatively influence the mediation process and prolong the process of resolving the conflict.

While it is important to define what mediation is and the role mediators can play in conflict resolution, it can be just as important to define what mediation and mediators are not.

Mediation Is Not...

* Meant to be an ongoing and long-term facilitation. The purpose of mediation is to resolve a specific conflict. While this objective may take multiple mediated sessions to achieve, there is a limit to the number of sessions that could be considered beneficial and value adding. For example; if there was a workplace conflict, the solution to try and resolve it would not involve setting up a mediated session once a week for the duration of the employment contract. There comes a point where the two parties may not be able to mutually agree on a suitable outcome through mediation so an alternate method of dispute resolution may be required.

* Arbitration. The arbitration process exists to impose a binding solution to a specific dispute. The purpose of mediation is for the two parties to mutually agree on the solution. The mediator is not meant to enforce a decision. They are there to guide the conversation and help the two parties concentrate on the topic at hand in order to come to a resolution that is accepted by both parties.

Mediators Are Not...

* Private Investigators. Mediators do not "work for you," nor will they work to build a case against someone. Mediators will examine the facts surrounding the dispute in an attempt to understand what each parties point of view in order to determine what the options are that may end the dispute. A mediator will not show up to a session with a background check on each party. This is important to point out because it enforces the aspect that people will only get out of mediation what they put in.

* Psychologists or Social Workers. Mediators will work with both parties, and therefore cannot counsel or give advice to either party involved in the dispute.

* Advocates. Mediators will not take sides or promote one person's point of view or request over those of another person.

* Security Guards. Mediators are not there to physically protect individuals. If one of the parties involved in the conflict feels physically threatened then a mediator is not the person to protect them.

Often times a mediator will begin by laying the framework for the session or setting an agenda (International Academy of Mediators). By outlining some of the points above (as silly as some of them may seem) it could be beneficial to the session because it will help to manage everyone's expectations in terms of what they can expect to get out of the session and the role the mediator will play in attempting to resolve the conflict.

Negotiation

Negotiation is a focused verbal, interactive discussion that involves two or more people. It tends to occur when there is a problem, a conflict of interest or a common concern between parties. The parties will engage in direct discussions with each other in a concerted effort of reaching an agreement. Both parties may use persuasion and influence to get the other party to see things their way(Negotiation Guidance Notes 2010). Often times negotiation is considered successful when each party is satisfied that the solution is fair.

Sometimes if the parties cannot agree on a mutually beneficial solution, they may then use a more structured form of dispute resolution such as mediation. One of the main differences between mediation and negotiation is the formality of having the unbiased 3rd party present in mediation. Some of the similarities between mediation and negotiation are that they are both non-binding, the purpose of both in the context of this paper is that each party involved is seeking a resolution to a conflict , and they both aim to move from issue to outcome. One other commonality between mediation and negotiation is that they can both be very flexible. In the example given by Linda Gale in our lecture, the resolution over the dispute of a horse was a dog. This was a fantastic example and highlighted that if the parties involved in the conflict are open to it, both mediation and negotiation can be flexible enough to offer a resolution that does not have to be like for like as long as both parties agree and are happy with the outcome.

The diagram below shows a very high level framework for exercising various conflict resolution strategies and the evolution of moving from issue to outcome in order to resolve conflict.

Diagram 1.1 - Issue to Outcome conflict resolution framework

One of the major dynamics that needs to be managed in both mediation and negotiation is the situation where one of the parties involved in the conflict knows more about the topic that is being disputed than the other. In negotiations, having a greater knowledge of the topic that is being disputed could give one party the upper hand. In mediation, it can help if the mediator