Model Standards of Conduct for Mediators

  • Uncategorized

5

MEDIATION

Arbitration is an alternative dispute resolution method that ispracticed worldwide. It is a technique in which conflicts betweenparties are settled outside the court processes. It is often thepreferred method in commercial disputes, especially if the processesinvolved are international transactions. Arbitration is also commonin the resolution of employments matters, where organizations favormediation rather that litigations in dealing with the terms ofcontacts (Spies, 2014). One of the main features that distinguish itfrom other processes is the fact that the go between is selected bythe parties involved. Consequently, the outcome of the proceedingswill be binding and acceptable. The model standards of conduct formediators ensure that the process results in a suitable and fairconclusion. They include self-determination, impartiality, conflictof interest, competence, and confidentiality (Spies, 2014).

The most important principle of arbitration, which separates it fromlitigations and other dispute resolution processes, isself-determination. To achieve the goals of the mediationundertaking, the parties must be allowed to take control over theprocess and make voluntary decisions without coercion and undueinfluence. These include the selection of the mediators, amongothers. The input of each party has an impact on the fairness of theoutcome. Additionally, it ensures that the disputing entitiesactively and efficiently participate in the inquiry, resulting in ajust and acceptable conclusion (Spies, 2014).

Neutrality of the mediator impacts on his or her role in thearbitration process. The inquiry will not be valid if the third partyfavors (or is seen to favor) one side of the dispute. Thus,impartiality and absence of prejudice are paramount. If thearbitrator is unable to act without bias, it is prudent that he orshe should withdraw from the task. Lack of neutrality is a barrier toa fair determination because it is an impediment to communication.This is because the opinions of the third party are likely to supportone side resulting in injustice. Additionally, it converts theprocess into litigation where the mediator is the judge (Spies,2014).

Conflict of interest is closely related to the principle ofimpartiality. A third party is likely to have an opinion or prejudiceon a conflict if he or she has an interest in the subject matter.Therefore, mediators should not engage in an inquiry in which theyare likely to personally or professionally benefit from any of theoutcomes. Although direct interests are easier to identify, indirectbenefits are more complicated to determine. If a conflict of interestoccurs, the arbitrator should withdraw from the process. Otherwise,he or she will tend to favor an outcome which is more beneficial tohim, resulting in unsatisfactory conclusion (Spies, 2014).

The competence of the mediator should satisfy the expectations of theconflicting parties. It is dependent on training and experience.Consequently, an arbitrator should not engage in a process in whichhe or she is not well equipped to handle. For example, it isessential to disclose his or her background and professionalknowledge. A competent intermediary will result in a fair and justundertaking. This is because he or she has more productive inputs andcan observe professional boundaries more effectively (Spies, 2014).

Confidentiality is essential in an efficient and fair arbitrationprocess. There are two aspects of privacy that have significance inmediations. First, all the parties involved, especially the mediator,have a responsibility of ensuring that the secrecy of the discussionsis safeguarded from entities outside the negotiations. Secondly, thedetails of a private meeting with one of the conflicting partiesshould not be disclosed without regard to the secrecy of information.Lack of privacy will derail the conciliation because people will tendto withhold information, thus, an inaccurate determination (Spies,2014).

The InAccord model supports the five principles of arbitration. Inits guidelines, the mediator has a professional and moralresponsibility of respecting and upholding the integrity of theparties involved in the conflict. This will promote confidentiality,impartiality, and self-determination. Additionally, in InAccordArbitration, the intermediary should ensure that all the matters inthe proceedings remain confidential. Thus, the three phases mustuphold the rules of the process. For example, the arbitrator shoulddisclose any conflict of interests, be fair and impartial, and ensurethat all undertakings are based on the will and desires of disputingparties (Mediators without Borders, 2014).

Civil communication during the mediation process is essential inenhancing the outcome. This can be achieved by promoting Touchstoneskills to aid clear and compelling interactions. Mediators should beable to educate their clients on how to use some of these skillsduring the initial phases of the process. They include questioning,reflecting, and reframing skills. These will enable the parties topresent inquisitive statements to inducing a response. He or sheshould also be able to interrogate his thoughts and talk.Consequently, they can be reframed or restructured to avoid negativeresponses. For example, toxic comments can be replaced with morefavorable statements to promote mediation progress (Mediators withoutBorders, 2014).

References

Mediators without Borders (2014). InAccord Conflict Analysis Modelfor Arbitration. Mediators without Borders.

Spies, D. (2014). The Citizen`s Guide to Mediation andArbitration, ISBN 1491733373, iUniverse.

Close Menu