The scope of private mediator depends on having professional training , support and equipment context to accompany him and the regulations or legislation that may apply.
El alcance del mediador privado depende de la formación que tenga como profesional, del apoyo del contexto y equipo que le acompañe y de la normativa o legislación que se pueda aplicar.
Mediation, as opposed to arbitration, occurs within, and as an alternative to, judicial litigation. Its scope is generally the same, although the rules of evidence might be looser. The parties will usually discover their strengths and weaknesses and be able to explore alternative ways of resolving their disputes that they could not have foreseen within the scope of their pleadings. I was once involved in a mediation where each side gained more than it would have had it won its case entirely in court. Both came out winners beyond what each had asked for in its pleadings. In that sense, the scope can be wider than what a court can order. Mediators are almost always attorneys, usually former judges, but the best mediators of all can be the parties themselves. It is best to mediate before you get to court, especially in disputes between individuals, citrizen v. citizen, neighbor v. neighbor, spouse v. spouse. Courts should be a last resort. Avoid lawsuits. They waste your time, money and life.
Yes it is sure that it need a long discussion... But in simple word private mediator can play important role in resolving any kind of problem but it depends on his personality that how much he has influence on them (dispute parties). If he has not than he must engage those people who are influential for the community and deputed parties. Mean who are much more respected for them. The may bay religious leaders, clerks, politicians, local aged people as customs in some countries, local and family elders or politicians etc....
In any case , I consider mediation as the best reeducation technique to reach an agreement , albeit minimal, between the parties to the conflict. Of course you can win in time, money and volume of the agreement. But where I think more wins , it is in educational management process itself : where the parties reflect on what happened and seek possible solutions on ideas that will have to prioritize . Learning to ask for forgiveness , be humble, objectively reflect, learn to compromise and accept the agreement , they are good attitudes of the parties to the conflict. Confidentiality, balanced dialogue , professionalism , neutrality , are also good qualities of the mediator or mediators.
En cualquier caso, considero la mediación como la mejor técnica reeducativa para llegar a un acuerdo, aunque sea de mínimos, entre las partes del conflicto. Por supuesto que se puede ganar en tiempo, dinero y volúmen del acuerdo. Pero donde más creo que se gana, es en la gestión educativa del propio proceso: donde las partes reflexionan sobre lo acontecido y buscan posible ideas de soluciones sobre las que tendrán que priorizar. Aprender a pedir perdón, ser humilde, reflexionar objetivamente, aprender a ceder y aceptar el acuerdo, son buenas actitudes de las partes del conflicto. La confidencialidad, el diálogo equilibrado, la profesionalidad, la neutralidad, son también buenas cualidades del mediador o mediadores
Here's the cliff note version. The mediator (the third-party neutral) is either hired by the parties in the dispute or in many instances it is court-ordered. In both situations, the mediator's role is defined by the nature of the dispute and in private mediation, the ground rules are agreed to by the parties in advance of the mediation. So the scope of the mediator is defined by the parties and general principles of mediation. Impartiality, an understanding about the nature of the dispute and the parties involved in the dispute must agree to terms to resolve the dispute. Furthermore, the parties sign a confidentiality agreement in which it is agreed that neither party will attempt to have a mediator testify about the prior attempt to resolve the conflict or dispute through mediation. The mediator is not an arbitrator and cannot impose a decision on the parties. In either voluntary or court ordered mediation, the parties agree to mediation but are not required to come to an agreement.
There are hybrid types of mediation such as med-arb. This is a situation in which the parties agree to mediator and if the parties are unable to which an agreement, then the mediator switches roles and becomes an arbitrator. Conversely, arb-med. The third-party neutral's initial role is that of an arbitrator and then if the parties are unable to reach an agreement through mediation then the parties agree to be bound by the sealed decision of the third-party neutral when he/she was in the role of an arbitrator. In all of the examples above, the parties in the dispute must agree to the terms and conditions of the how the role of the third-party neutral (i.e., mediator, arbitrator or both). I hope this information is helpful.
Glenn's description is excellent -- very clear and helpful. This aligns in large part with my own professional experience although I invite parties to offer their ground rules during the mediation.
The issue of assuming dual roles is a concern in many professions (the therapist-researcher in psychology, for example). Similarly, in the field of alternative dispute resolution, the med-arb role is questionable from an ethical point of view. Even if the mediator-arbitrator is transparent with parties about changing roles at some point in the process, parties may reveal information to the mediator in the mediation phase that could later harm them in the arbitration phase which is troublesome. Parties who are aware of this potential issue may choose to withhold information during mediation so as not to be harmed in the arbitration but then this negatively impacts their participation in the mediation. As well, the very nature of such a "Plan A-Plan B" process presents an implicit a lack of confidence in mediation and even the parties.
Mediation can be an amazing process. At its best, it offers people the support they need to engage in more productive dialogue with each other and to determine the solutions that will best serve them. I think it's in the best interest of parties as well as the integrity of the profession to keep it separate from other processes. If parties decide they want to go to arbitration, that is certainly fine, but I believe everyone is best served when these processes are separated and facilitated by different people.
Mediation can be a comparable successful, fast, self-centered way of a lead negotiation to a conflict resolution between conflict parties.
It is one of different Alternative Dispute Resolution (ADR) approaches (e. g. negotiation, arbitration) which is done behind closed doors (not publicly in the court).
Next to speed and short times for a possible resolution (between a weekend and a couple of weeks), the idea of having the conflict in ones own hands (and not giving it to external experts (judges, arbitrators) is one of the positive key issues...
Another point is that the conflict parties are able to seek win-win-situations and are commonly looking into the future...
The mediatior is a "trainer" or "coach" who helps the clients to negotiate a deal and finalizes it....
There are libraries of literature on this topic....
One of the bibles is Roger Fishers "Getting to Yes"... (and the various books published later)
(Fisher is the lawyer who inventet the "Harvard Principle")
And you might be interested in looking into Harvards PON (Program on Negotiation)
The scope of the mediator to resolve disputes between parties to a conflict lies mainly on the capacity available to the mediator to ensure the characteristics of the mediation process : neutrality , confidentiality, voluntariness, it helps establish dialogue and the communication. Remember that the mediator does not resolve conflicts , but it helps as a third person in the process , to establish communication has been broken between the parties to the conflict , it helps to clarify the problem and favors reaching an agreement , even minimum , from the ideas and solutions proposed by the parties.
El alcance del mediador para resolver disputas entre las partes de un conflicto, radica sobre todo, en la capacidad que disponga el mediador para garantizar las caracterísiticas del proceso de mediación: la neutralidad, la confidencialidad, la voluntariedad, la ayuda a establecer el diálogo y la comunicación.
Hay que recordar que el mediador no resuelve los conflictos, sino que ayuda como tercera persona en el proceso, a establecer la comunicación que se haya roto entre las partes del conflicto, ayuda a esclarecer el problema y favorece el llegar a un acuerdo, aunque sea de mínimos, a partir de las ideas y soluciones propuestas por las partes del conflicto.
The private mediator can have the same opportunities to exercise their profession and the success of the agreement in a conflict, as an institutional mediator, can have it since the training, experience and the process of relationship can favor you alike. Sometimes can be even more decisive, for the freedom and independence that can show to the side of a dispute, to be on the fringes of the institution and to have another different perspective.
The mediator's scope in a private mediation depends in large part on what are the rules and boundaries agreed upon by the parties in dispute. For instance in labor mediation, the parties typically agree on the length of time spent in mediation and of course the cost of mediation is normally split evenly between or among the parties in dispute. Otherwise, just like in court-ordered mediation, an agreement is not mandatory and the normal rules of mediation are in effect.
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