Mediation is a well-known method of solving conflict in different society and institution. It involves the coming up a neutral person from the conflicting parties who help in a constructive discussion and negation of the issues in order to reach a mutually acceptable resolution. The method is an alternative dispute resolution but can be used to solve conflict of any magnitude as the participation to the process is voluntary as it enforced by the law. The process have dynamics, structure and timetable in which the third party facilitate the process and not direct any party. During the process the conflicting parties are encouraged to participate in the engagement while the mediator the party- centered have a core role to look on the needs, rights and interest of the parties. He or she can use any kind of mode he find best to facilitate the negations as well as conduct a reality testing. Reality-testing is when the mediator analyzes issues and relevant forms (White, Michael, & Epston, 1990).
The mediation process can be used to solve conflict in all kind of setting such as family, workplace, commercial, public disputes and others such as school conflicts, violence-prevention, victim-offender mediation, non-profit organizations and faith communities. The method has it pros such as it is cost effective, maintain confidentiality, maintain control and peaceful management of the conflict, ensure compliance to solve the conflict as the parties need to take part in the process, it increase togetherness as the parties come together in solving their conflict, it involves the help of the mediator who provide the support to solve the conflict and lastly it make it possible for accessibility of justice (Monk, John, Winslade, & Gerald, 2000).
I will look on a mediation case that went wrong and solved by the court in Australia that set a precedent for mediators liability. The case involved two sisters who had conflict on settlement of an estate. During the process of mediation only one sister attended the meeting and the other participated in the meeting through a phone while having her lawyer with her. At that time It was orally expressed that the before final settlement, taxation advice should be sought as such a large of property would trigger capital gain taxes. Tapoohi paid Lewenberg 1.4 million dollars in exchange of the land. Later on after a year the sister had to sue the mediator and her lawyer after realizing that tax was owed. She did so because the agreement was subject to further taxation advice. The original agreement of the process was not a formal agreement as it was done orally. Tapoohi, a lawyer herself alleged that the mediator breached his contractual duty, given the lack of any formal agreement, and further alleged tortious breaches of his duty of care. The court ruled against the Tapoohi but explained during mediation the mediator owe a duty of care to parties and the parties can sue the mediator once the duty is bleached.
The recommendation of the case was to ensure before the process a clause that limit mediators` liability should be included as well as the agreements in the process should be informal agreements. Trooper could have attended the meeting in person in order to ensure a formal agreement was written and not orally spoken. Additionally the mediator should have included a clause to limit his liability.
Mediation have several barriers to its success. All parties should be on point with their duty and discipline in the negotiation for the mediation to be successful. The mediator can be liable when he causes liability of contract. This arises when the mediator bleaches the contract both the written and verbal contracts. The mediator failing to perform in process leads to unsuccessful mediation and coming up of the not appropriate solution to the conflict.
Mediator can breach his duty such as by breaching confidentiality and integrity causing a liability of tort. He may mislead or act in a negligent manner and this may make some arties shy away from continuing with the process hence no solution was reached (Boulle, 2005).
Mediators can cause liability for breach of fiduciary obligations which can occur if the parties misconceive their relationship with the mediator rather the right neutral relationship. Hence the meditator should at all cost maintain his position and relationships with the parties. Failure to which may prejudice the whole mediation process.
The solution finding of the mediation process involves a series of steps. In the solution find the mediator should facilitate a post-mediation activities such as the ratification and review, referral, mediator debriefing and measuring effectiveness. The process should be ratified as the mediator review the whole process especially the meeting step. He or she should then seek assistance from experts in accordance to the subject matter and there after he makes his brief and opinion and help the parties to come up with the best solution. At last an effectiveness measure should be carried out to make sure due care is exercised (2007, 2007).
FORMAL DISPUTE RESOLUTION REQUEST
Name of Individual/Organization Filing Complaint
Date Daniel Brown
Zip Code - 5874
Childs Name (if applicable) John Peter
Childs Date of Birth (if applicable) 01/12/2009
Telephone Number(s) -25389497
Fax Number(s) -2849
Email Address (optional) [email protected]
FORMAL DISPUTE RESOLUTION OPTION(S)
Mediation Only --- YES
Either Due Process Hearing (request must be within one year of the date of the alleged action) or Check here if you initially want to attempt to resolve the dispute through Mediation.
I choose mediation
Either Administrative Complaint (request must be within one year of the date of the alleged action) or Check here if you want to attempt to resolve the dispute through Mediation.
I choose mediation
Check here if you plan to have representation by counsel. The lead agency is not liable for any attorney fees incurred.
FORMAL DISPUTE RESOLUTION REQUEST.
NAME OF PROVIDER / ORGANIZATION DISPUTE FILED AGAINST.
Name Janet Diana.
Address - 50
Zip Code - 5874
Telephone Number(s) -511554214
Email Address (optional) [email protected]
Other Parties to Dispute (if applicable) N/A CITATION Chr89 \l 1033 (Moore, 1989).
STATEMENT OF DISAGREEMENT
Conflict of custody of our son John Peter. I need joint study of our soon.
FACTS SUPPORTING STATEMENT OF DISAGREEMENT
I am the biological father to John Peter and need more time spending with my son.
SOLUTION(S) TO AREA(S) OF CONCERN
The solution is that I should be allowed more time with my dear son through joint custody CITATION Edg49 \l 1033 (Warren, 1949).
2007, C. H. (2007). peer Mediation. Open University Press.
Boulle. (2005). Mediation: Principles processes practice. Australia : Butterworths.
Monk, John, Winslade, & Gerald. (2000). A new approach to conflict Resolution . In Narrative Mediation (p. 3).
Moore, C. (1989). The mediation process. Center for dispute Resolutions .
Warren, E. (1949). The mediation Process. University of California .
White, Michael, & Epston, D. (1990). Externalizing the problem . WW Norton and co. Inc.
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