Tense relationships, conflicts over power may be identified and managed, or ignored. If they are ignored there might be an increased risk that these will escalate in the future. Often it is seen as preferable to manage power conflicts through the application of empathy, creative responses, meaningful assertiveness, the purposeful expression of emotion, cultural sensitivity and enhanced communication. Conflict management may include different and at times overlapping approaches, including conciliation, bargaining, negotiation, mediation, advocacy, adjudication or withdrawal and mediation.
1. Mediation: The Context
Barsky (2000, p. 263) defines adjudication as being another form of conflict management. This process often involves the delivery of evidence and debate before an impartial third party, who then determines the outcome of the dispute for the other parties concerned. Adjudication usually results in a win or lose situations; arbitration and litigation are forms of adjudication. Often when adjudication occurs evidence is delivered and an impartial third party hears arguments from one or more litigants. Next the third party makes a determinative decision about the outcome of a dispute. Often this decision can be appealed based on errors of law or fact. Boulle (2005, p. 116) suggests that arbitration occurs when parties who may be in a dispute with each other present their debates to an impartial third party who determines the outcome. This decision has “limited judicial review” (Bingham, Hallberin & Walker, 2006, p. 6). In both litigation and arbitration a third party makes a binding decision on a dispute. In contrast to these approaches mediation is not a determinative way to address disputes.
Broadly mediation is an agreement-reaching process, in which individuals have opportunities to create an accord between them in a cooperative, voluntary and informed way. The National Dispute Resolution Advisory Council: Alternative Dispute Resolution Definitions (2000, p. 5) (as cited in s 30 in Hopeshore Pty Ltd v Melroad Equipment Pty Ltd) was defined thus:
“Mediation is a process in which the parties to a dispute, with the assistance of a neutral third party (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no advisory or determinative role in regard to the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted.”
The mediator can provide you with opportunities to explore and name the sources of your conflict in a caring environment.
2. Mediation: The Process
Mediation can be a process to facilitate agreement between parties who are in conflict with each other should they both chose this option (Boulle, 2005, p. 3). Mediation may take place when a mediator assists two or more parties to pinpoint contested issues, create alternatives and develop resolutions (Al-Hakim v Monash University  VSC 511; Astor & Chinkin, 2002; Bush & Folger, 1994; National Alternative Dispute Resolution, 2012; Winslade & Monk, 2001). Agreements between the parties do not need to be consistent with precedents or prevailing standards in communities (The Law Society of New South Wales, 2008). Often the mediator does not give legal advice and may guide the parties through the process. Individuals often set the scope of mediation in concurrence with the mediator. The mediator has no authority to determine disputed issues for persons. Mediation ranges from formal to less official responses (Barsky, 2000, pp. 185-186). According to Dinerstein (2003, p. 84) ―
“If client-centered decision-making means anything, it means that, as long as we counsel the client thoroughly about her options and predict the legal consequences of her choice as accurately as we can, the decision ultimately is for the client”.
During mediation individuals might avail themselves of opportunities, for example, to isolate some issues, which they may wish to explore at a later date.
At times mediation may not continue and one or more of the parties might not be at a stage at a particular point in time to arrive at a written agreement. By way of example, parties may develop promises between themselves to each other and if these are not adhered to this can have an adverse impact on a consensual process. Furthermore, one party may not maintain undertaking/s to other parties including the mediator. Under these kinds of circumstances mediation may be ended. A disadvantage of mediation is that dominant parties may attempt to subvert the needs of vulnerable parties to meet their own needs. Mediation can be enhanced through technologies such as computers and the Internet.
3. Mediation, Computers and the Internet
According to Kirby (1998) with the advent of computers and the Internet, “The speed, power, accessibility and storage capacity for personal information identifying an individual are now greatly increased.” For mediation to develop it is pivotal that frank and genuine communication between the parties and mediators occur. Mediators may communicate separately with a party; the “caucus” is often confidential between mediators and individuals unless they agree to waive their confidentiality or a court determines otherwise. Each party undertakes to fully and honestly disclose all data and writings as mediators request, and all materials requested by any other party, to the mediation, when such data is viewed as being of importance to manage disputes. Written and oral communications, which are linked to mediation are theoretically often without prejudice settlement dialogue.
The Trident Foundation offers face-to-face, chat and telephone-based mediation to those who may be in need because of challenges often associated with time and space. In sum, it seems to be preferable for a number of reasons that, wherever possible, individuals, couples, families and groups be able to make voluntary use of options in conflict management such as mediation. Mediation can be applied in a number of contexts including those linked to family, separation and divorce, parenting, property division and human rights. Citations to the literature are available upon request.
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