Mediation as a Form of Dispute Resolution (3 of 4)
Factors that make matters susceptible to mediation include:
Timing
- the duration of the dispute ( how long standing or protracted) and;
- the status of the matter within the legal process (complaint filed or not filed/case set for trial/trial imminent
Experience and Personality of the Parties
- the self confidence and/or experience possessed by a party;
- whether the party is willing to take responsibility for her or his actions;
- the prevalence of operative mythology (addressed below); and
- the rigidity/motivational orientation of a party.
Peripheral Forces
- the effect of political and social forces.
- the perceived clarity/confusion or complexity of the legal and factual matters that need to be resolved; and
- the protracted nature or intractability of the matter.
Skill and Experience of the Mediator
What role can the expert play?
In the AFM Standards of Practice, VIII. Professional Advice, mediators are advised to " . . . encourage and assist the participants to obtain independent expert information and advice when such information is needed to reach an informed agreement or to protect the rights of a participant."
Experts can act as co-mediators as well as neutral experts although the roles are significantly different. If acting as a co-mediator the expert must comply with the ethical constraints of impartiality and neutrality and the goal of self-determination by the parties. The expert co-mediator can't give an opinion as to value but can provide information to assist the parties in making informative decisions and in formulating their own settlement.
When consulted as a neutral expert the appraiser's role requires her to utilize her expertise to give an opinion that the parties can chose to either use or ignore. My interview of several mediator presenters at the national SPIDR Convention in October, 1997 held in Orlando convinced me that the recommendation by a mediator to employ the services of a neutral expert is far more common than the use by the mediator of an expert to co-mediate. Peter Adler, former president of SPIDR noted that he has utilized the services of appraisers as both expert and co-mediators.8 In larger cases where the parties themselves have independently employed two experts it is also acceptable to ask the experts to select a third expert if the parties do not feel that they can rely upon either of the experts selected by the other.
Why don't more people mediate?
The Operative Myths9 Myths are stories of significance that people tell themselves and each other to make sense of the world around them. One of the reasons that people decline the opportunity to mediate is because of their belief in four specific myths.
1. Myth of Justice - The belief that a thoughtful and compassionate judge will deliberate and make the fair and right decision.
2. Myth of Finality - The belief that a court rendered decision is equivalent to a final settlement that will be accepted, or at least followed, and if not followed, at least enforceable.
3. Myth of Rationality - Belief that decisions made by judges, arbitrators or other experts are purely logical, and dispassionate.
4. Myth of objectivity/Neutrality - Belief that decision-making is a purely objective enterprise.
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