essay over mediation

Teaching & Learning

Resolving conflict outside the courtroom.

Why mediation skills are increasingly valuable for lawyers, according to two Harvard Law experts

What if there was a way to settle disputes faster, confidentially, for less money, and with the potential to better preserve relationships between the parties? Enter mediation, a form of alternative dispute resolution where participants in a conflict sit down — with a third-party intermediary — and hash out possible solutions.

According to one study , up to 92 percent of cases are resolved out of court, a figure that does not include the number of lawsuits that are never filed because the parties used other dispute resolution methods at the outset. Mediation is rising in popularity as one such method, according to David A. Hoffman ’84 , the John H. Watson, Jr. Lecturer on Law at Harvard.

“These skills are important for all law students, especially those interested in litigation, since the vast majority of their cases will at some point be candidates for mediation, either because the judge suggests it, the client asks about it, or the lawyer feels like it’s an important option,” says Hoffman, who has taught mediation and dispute resolution at Harvard since 2008 and is a founding member of Boston Law Collaborative (BLC).

Hoffman co-teaches the Mediation course with Audrey J. Lee ’05 , a lecturer on law at Harvard and senior mediator at BLC. Lee is also a co-lead of the Harvard Mediation Intensive , a 40-hour executive education mediation program offered by the Program on Negotiation. Lee says that mediation can save money, time, and even relationships, because it can be individually tailored to the needs and desires of the parties. “A lot of people view this as a more productive way to resolve problems.”

In an interview with Harvard Law Today, Hoffman and Lee discussed the rise of alternative dispute resolution methods, what mediation offers, and why law students should learn to be good mediators.

Harvard Law Today: How is mediation used in the legal world?

Audrey Lee: Mediation is one way to resolve a dispute that is in the litigation process. Sometimes it might be introduced early on, maybe even before a formal complaint is filed in court, afterwards, or even just before a trial starts.

David Hoffman: It’s used very extensively in cases that will otherwise be decided in a court. In litigation — ranging from family business disputes and divorce to environmental and employment cases — mediation has gone, during my career, from being more the exception, to the rule. The type of litigation cases that never get mediated are the ones where there’s an issue of principle involved — for example, Brown v. Board of Education is the paradigmatic case that nobody thought should be mediated, because there was an important issue, racial segregation, that needed to be adjudicated.

Mediation is used much less in transactional work, and I think that’s because a lot of the participants, especially in corporate transactions, are already playing a mediative role. For example, investment bankers are sort of mediating between an enterprise and the investment stakeholders. However, in my view, mediation is underutilized in transactional work.

HLT: Why is mediation becoming more common?

Hoffman: A fair number of reasons. One is that in some jurisdictions, there have been delays in getting trial dates because of docket congestion. And so, courts are very supportive of mediation, and often encourage it as a way of sorting out the cases where a negotiated resolution is entirely possible. That preserves precious judicial resources for cases that need a trial.

The other impetus has to do with the costs of litigation for the litigants, as legal fees have continued to rise. Particularly in big law firms, hourly rates have reached a level that if a case can be resolved much more inexpensively in a mediation, the clients are looking in that direction, and lawyers who value the loyalty of their clients are likely to suggest it. Sometimes, ethical rules or court rules require lawyers to discuss mediation with their clients. For example, Massachusetts has a court rule that requires lawyers to certify in certain court filings that they have discussed alternative dispute resolution options with their client.

For both lawyers and clients, there’s a logic to mediation that is very compelling: you’re entrusting an independent, impartial professional with the role of being a confidential deal broker, which means that each side can talk confidentially with the mediator about their perspectives on the case and the extent to which they have flexibility. And so, the mediator acquires a lot of information through this use of shuttle diplomacy that can help everyone figure out whether there’s a zone of possible agreement.

HLT: How are the skills mediators use similar to those of a litigator?

Lee: There are some similarities between litigation work and what a mediator might do. Something that is important for both roles is understanding what’s most important to your client (or a party in mediation) — their interests. Lawyers need to identify and truly understand what their client’s interests are, the priority of those interests, and do some thinking about what is important to the other side, if there is going to be a resolution. Those are very similar skills that mediators use all the time.

HLT: How do they differ?

Lee: If you’re acting as the mediator, you’re the third party — an impartial facilitator of the negotiations. I think there is something a little bit different about inhabiting that third person role, where you’re tasked with trying to figure out what the interests or the needs are for both sides, exploring the differing experiences of both sides.

The types of cases I handle most often these days are early disputes in an organization or workplace, perhaps before there’s been a formal complaint. These cases look a little different from cases where there has already been discovery and lawyers have already been extensively involved.

Hoffman: One thing that’s beginning to happen in the legal profession is that there are some lawyers who are carving out a specialty in alternative dispute resolution. It’s not a widespread phenomenon, but it’s definitely increasing. And it’s a little bit like the distinction between solicitors and barristers in the British legal system. For example, in the United States and throughout the world, we now have the development of collaborative law, which is a process in which the lawyers on both sides agree in advance that they are in the case only for negotiation, and they’ll withdraw and hand the case over to litigators if it needs to go to court. We still need skilled litigators, of course, because there are certain cases that resist settlement, or where an issue of principle has to be decided, or where a decision could affect parties and stakeholders who are not involved in the case, such as with a patent.

HLT: Your course is centered around role playing to practice being both a mediator and an advocate. Why the emphasis on hands-on learning?

Hoffman: Oscar Wilde once said that anything truly worth knowing cannot be taught. However, it can be learned. And learning by experience is one of the most powerful ways to absorb the material that Audrey and I share with the students about the theory of mediation. Until students actually put the theory and the skills to work in simulated mediations of actual cases, the learning doesn’t become muscle memory. This is also true with the skills needed to be effective as an advocate in mediation, which is, of course, what many of the Harvard Law School students may find themselves doing even in their early years of practice.

HLT: We all know that tensions can run high between parties to a conflict. How do you keep the mediation process positive and productive?

Lee: Built into this question might be some ideas about how people in everyday situations typically try to approach tense situations: often by trying to defuse them. It might seem counterintuitive at first, but in mediation, we teach that instead of running away from strong emotions, we need to acknowledge them, to try to work through those moments, to acknowledge that it’s a difficult conversation and that there might be things said that are incredibly hard to hear.

Sometimes in mediation, the mediator is speaking and working with everyone at the same time, and we call that a joint session. Sometimes the mediators meet privately or one-on-one with a party and their lawyer, if there is a lawyer participating. These different methods can also impact how comfortable the parties feel in being open with what they are thinking.

Hoffman: One of the tools that mediators use is to work with parties on designing a process that fits the specifics of the case. Frank E.A. Sander ’52, who first started teaching mediation at Harvard Law School in 1981, co-wrote an article called “ Fitting the Forum to the Fuss .” That means not just deciding whether what the case needs is a courtroom or arbitration, mediation, or some other process, but even within mediation, fitting the forum of the mediation to the specifics of the case.

For example, consider a situation where business partners are having a falling out, but would like to stay in business together, or an employment situation where an employee is thinking about leaving, but the company wants them to continue. In those kinds of cases where a relationship needs to be repaired, very often mediators will suggest that the parties meet together with the mediator refereeing the conversation. But in cases where there either never was a relationship (such as an auto accident or other tort case), or the relationship is completely broken, the mediator might recommend shuttle diplomacy as more appropriate. With shuttle diplomacy, where the mediator meets each side separately, the parties don’t have to be quite as careful not to hurt the feelings of the other side or say something that the other side might view as offensive.

HLT: Can people who are very different from one another — such as those from different cultural backgrounds, for example — nonetheless have a successful mediation experience?

Hoffman: Absolutely — it happens all the time. There are certain kinds of diversity that are present in pretty much every case. And even people who may come from the same ethnic or cultural background, there may be differences of gender, age, disability, education, class, etc. And part of the mediator’s job is to translate, because everyone has their own perspectives. And even if parties don’t reach common perspectives, they can agree to put their different perspectives aside, because there’s a resolution available that serves their interests better than the alternative, which is going to court.

Lee: In many of my cases , there is a clear difference in power: for example, one person is the supervisor, and one person is the direct report. As mediators, we can be helpful in trying to set up a space for conversation that can be comfortable and productive for both people.

Before the first session, I’ll have spoken privately with each side, in a pre-mediation conversation, to introduce myself and learn what’s most important to them, and also, what they might need to be able to fully participate. I also find it helpful to share a few discussion questions in advance, so that each side can think about what they want out of the conversation or mediation. And likewise, what might be something that the other party might not know that might be important for them to learn. And then, I try to be mindful of things that each of them may have shared with me that might be helpful for them as they’re trying to come into this space and fully participate.

HLT: Story time! Have either of you led a particularly memorable mediation?

Hoffman: One of the cases that comes to mind involved a whistleblower. He had been terminated by a big company, and he claimed that the reason he was terminated was that he had been complaining about ethics violations by the company. Each time the employee had raised an issue about ethical problems, the company had referred it to the corporation’s ethics committee, and the complaint occasionally went all the way up to the board of directors. But each time, the answer was ‘this is not an ethics violation.’ The employee found that very frustrating, but the company also found it very frustrating to have this employee coming at them with repeated claims of ethics issues that turned out not to be. They put him on notice, but he continued to file ethics complaints, and they fired him.

In the mediation, the parties were very far apart in terms of the dollar amount that was being sought by the fired employee, who was alleging that his termination was legally actionable as a violation of public policy. I was meeting separately with the employee, and I had a copy of his resume. I noticed that he had served 20 years in the U.S. Army, and that those years coincided with the war in Vietnam. Simply to get to know him better, I said, ‘I see that you were in the army for 20 years. I’m curious, what was what was it like for you to serve in the military?’ And he gave me a wonderful answer. He talked about how he really felt great about his military service, and he said, ‘Unlike this company, where it seems like anything goes, we had rules in the military, people had to turn square corners. People had your back.’

And as he spoke with such animation, enthusiasm, and appreciation for the environment that he was in prior to going into the private sector, I could see the proverbial light bulb lighting up over his head. And he said, ‘You know, I think that when I went to work in the corporate sector, I was in the wrong place. I am probably a much better suited for an environment that is more rule-bound where there are rules, and not so many gray areas.’ And with that realization, we were able to quickly settle the case, because what he realized was that while he thought that he was fighting for truth and justice, maybe this was not the arena in which that fight was going to be successful. That transformative moment came not because I knew what the answer to my question to him was going to be, but just because I brought to the table the kind of curiosity that Audrey and I encourage in our students. By asking lots of questions and getting to know people better, we help them find their way toward a resolution.

Lee: My story involves two colleagues in an organization who were in a reporting relationship. One person, the direct report, accused the other person, her manager, of saying something racist toward her. As a result of this, they were not able to work together at all. The situation was very tense and difficult. I ended up meeting with them a few times over the course of several months, which is a little unusual for a typical workplace case. Initially, the types of agreements that that they came up with together involved things that might seem trivial, but that were critical, I think, in reestablishing trust. And so after the first one or two meetings together, there were some specific agreements about how and when they would meet together, what would be discussed, and also agreements about how they would engage in future difficult conversations together.

At the end of our work together, I could not believe the turnaround in terms of how they were engaging and seeing each other. It got to a point where they had so much mutual regard that they were making jokes together and expressing their support and appreciation for one another. It was one of those amazing mediation experiences where the two people come out of it not only able to reconcile differences, but with a transformed relationship.

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• The Mediation Process and Dispute Resolution

Understand the 6 steps necessary in the mediation process

By PON Staff — on July 25th, 2024 / Mediation

As compared with other forms of dispute resolution, the mediation process can have an informal, improvisational feel.  The  mediation process can include some or all of the following six steps:

1. Planning.

Before the  mediation  process begins, the mediator helps the parties decide where they should meet and who should be present.

Each side might have lawyers, co-workers, and/or family members on their team, depending on the context. Imagine a consulting firm and a printing company have decided to hire a former judge with about 10years of experience as a mediator.

(Increasingly, retired judges are starting new careers as mediators.)

Three-person teams from the two companies meet at the mediator’s office. As a senior manager of the consulting firm, you bring along a colleague and a lawyer.

Two managers and a lawyer also makeup the printing company’s team.

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2. Mediator’s introduction.

With the parties gathered together in the same room, Kathy, the mediator, introduces the participants, outlines the mediation process, and lays out ground rules.

She also presents her goal for the mediation process: to help the parties come to a negotiated agreement on the issue of a disputed consulting fee and to resolve the business relationship amicably.

3. Opening remarks.

Following the mediator’s introduction, each side has the opportunity to present its view of the dispute without interruption.

In addition to describing the issues they believe are at stake, they may also take time to vent their feelings.

Suppose that the spokesperson for the printing company begins by discussing how shocked he waste be presented with a bill for the additional consulting work.

“Since your training obviously didn’t work,” he says to you and your team, “I don’t understand how you could charge us for the work you failed to do in the first place.

You explain that your contract clearly states that work conducted beyond the initial training session is subject to your usual rates.

“I’m sure we discussed this over the phone at some point,” you say. “And in any case, a lot of your employees slacked off during the initial training. Their low motivation is not our problem.”

4. Joint discussion.

After each side presents its opening remarks, the mediator and the disputants are free to ask questions with the goal of arriving at a better understanding of each party’s needs and concerns.

Because disputing sides often have difficulty listening to each other, mediators act like translators, repeating back what they have heard and asking for clarification when necessary. If parties reach an impasse, mediators diagnose the obstacles that lie in their path and work to get the discussion back on track.

During this stage, the mediator in our negotiation example above attempts to understand why the two sides have such different views of how training went. In response to the mediator’s questions, Jeremy, the printing company’s representative, admits that organizational morale has been low due to recent layoffs.

“That’s no excuse for not paying your bill,” you say.

“In fact, it’s all the more reason that you should pay in full, if you admit the problem lies with you, not with our training.”

“Your people didn’t do a good job of understanding who they were working with,” Jeremy counters.

5. Caucuses.

If emotions run high during a joint session, the mediator might split the two sides into separate rooms for private meetings, or caucuses.

Often, but not always, the mediator tells each side that the information they share in caucus will remain confidential.

The promise of confidentiality can encourage disputants to share new information about their interests and concerns. In caucuses with both sides of the IT training debate, the mediator learns that the printing company is in financial distress.

“We regret buying the new computer system in the first place,” Jeremy admits to the mediator.

“There’s no way we’re going to be able to pay this bill.”

When the mediator caucuses with your side, you explain that you are worried news of this failed training will affect your firm’s reputation in Chicago and beyond.

6. Negotiation.

At this point, it’s time to begin formulating ideas and proposals that meet each party’s core interests—familiar ground for any experienced negotiator. The mediator can lead the negotiation with all parties in the same room, or she can engage in “shuttle diplomacy,” moving back and forth between the teams, gathering ideas, proposals, and counterproposals.

When putting together your settlement proposal, Northwestern University Professor of Law Emeritus Stephen B. Goldberg recommends that you ask the mediator for her advice.

Her conversations with the other side have probably given her knowledge of its interests that you can use when packaging your proposal.

Suppose that your caucuses with the mediator have led everyone to understand that your firm is primarily concerned about maintaining its reputation, while the printing company is worried about paying its bills.

This new understanding of both party’s interests leads to a round of bargaining in which you agree to cut your follow-up consulting bill in half—from $35,000 to $17,500.

In turn, the printing company takes responsibility for the difficult trading conditions and promises not to malign your firm to other organizations.

Though you feel you got the short end of the stick, ultimately you are glad to put the dispute behind you. About 80% of dispute mediations lead to resolution, according to Goldberg.

Depending on the complexity of the issues, mediation might last mere hours, or it could Take days, weeks, or months to resolve.

Some resolutions will truly be “win-win”; others will be just barely acceptable to one or both sides—but better than the prospect of a continued fight or court battle.

If the parties come to consensus, the mediator will outline the terms and may write up a draft agreement.

If you fail to reach agreement, the mediator will sum up where you have left off and may engage you in a discussion of your non-settlement alternatives.

What do you think is most valuable to the mediation process?

Related Dispute Resolution Article:  Negotiation Ethics: Staying on the Straight and Narrow in Dispute Resolution

Adapted from “Make the Most of Mediation” first published in the 2009 issue of the  Negotiation  newsletter.

Originally published June 2014.

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No Responses to “The Mediation Process and Dispute Resolution”

7 responses to “the mediation process and dispute resolution”.

VERY USEFUL MATERIAL

At least in the arena of mediating employment disputes, it is questionable as to whether a joint session works at any point in the mediation process. Initially, when starting the mediation process, I feel out both sides for their sense of whether a joint session will be useful. In any event, I spend some time at the beginning describing the procedure and getting a clear picture of where the parties stand. Then, with hope, I move forward soon into productive talks in separate caucuses.

Interesting discourse

Who is Goldberg you are citing, where is the citation from?

Northwestern University Professor of Law Emeritus Stephen B. Goldberg

Please advise when your Mediation Training Course is available in 2020.

Hello, The Mediation course will run from October 5 through October 9, 2020

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In the realm of virtual reality (VR) gaming, communities burgeon with diverse individuals, united by their passion for immersive digital experiences. Yet, within these dynamic spaces, conflicts inevitably arise, fueled by competition, differing perspectives, and the anonymity afforded by digital avatars. Mediation in virtual reality gaming communities emerges as a novel approach to address these conflicts, leveraging technology to foster dialogue, understanding, and reconciliation among players. This essay delves into the unique challenges and opportunities presented by mediation within VR […]

Harmonizing Interstellar Endeavors: the Role of Mediation in Space Exploration

As humanity continues to expand its reach beyond Earth's confines, the complexities of interstellar missions become increasingly apparent. Among the myriad challenges faced by astronauts and space agencies, managing conflicts within the confines of a spacecraft or interstellar colony stands out as a critical yet often overlooked aspect of space exploration. In this essay, we delve into the significance of mediation in navigating interpersonal disputes and fostering cohesion on interstellar missions. Space exploration inherently involves prolonged periods of confinement and […]

How Mediation Works: The Process in 10 Stages

31 March 2023

The growth of mediation in a wide range of settings continues apace. While its advantages are generally well advertised, insights into the mediation process works can serve as an important element in its promotion.

Mergi Hernandez examines the key stages.

View Mergi Hernandez BL’s Law Library Profile

The Pre-Mediation Phase

After the parties have agreed to undertake mediation, the process is very flexible and can differ in styles and approaches.

Generally, a number of connected phases and steps are followed and repeated in the pursuit of finding a mutually acceptable resolution.  The success or failure of the process lends its self to the skill and expertise of the mediator, as much as the willingness of the parties to engage.

The preparation will focus on the relationship of the parties, the mediation process itself and the dispute itself.  This phase is generally managed by a solicitor, however parties may directly engage a barristers or other professional without the necessity of a solicitor.

The parties willl need to gather adequate information [5] about the process to see if their dispute is suitable for meditation. [6]  Participation is on a voluntary basis, [67  with their informed consent, [8]  before the dispute can be referred to mediation. Most of the time this information is provided by the parties’ advisors, if any.

Selecting a Mediator

The parties may choose to select their own mediator directly from a given institution or seek referrals. The selection [9]  of the mediator is crucial to a successful mediation, as the mediator may be requiring having somewhat a background knowledge or speciality to conduct the mediation put before him/her. They must be competent, capable of building a rapport, trust, and confidence with the parties and to assess the parties’ attitudes and behaviour, [10]  to achieve a successful resolution to the dispute.

Where legal proceedings are in being or are being threatened, the parties may consider postponing or adjourning those proceedings [11] , to see if an agreement can be reached between the parties.

Preparation for the Mediation

Once the parties have agreed to undertake mediation to resolve their dispute, and the mediator has been selected, the mediator may initiate contact either face to face, via Zoom, by phone or email, before the appointed day of the mediation. [12]

There is not an exact formula as to how the mediator should run the mediation [13] at this stage. This can include

• A short briefing about the process,
• Rules and how it would be conducted, [14] 
• The mediator should also provide the parties with his or her qualification [15]  and years of practice, membership of any professional bodies, code of conduct which the mediator is bound by [16] ,
• The relevant fees and cost for the mediation,
• The date, time and time in which the mediation will be conducted [17] . 

The physicial venue [if not online] is usually a neutral venue, where no party feels threatened; such as a lawyer’s office, dispute resolution centre, conference centres, hotel conference room or court premises.

The Bar of Ireland provides an Arbitration and Alternative Dispute Resolution Appointment Service for parties unable to decide on a mediator or arbitrator.

This scheme provides a fast and free service whereby the parties to a dispute can if they agree, ask the Chair of the Council of The Bar of Ireland to appoint a Barrister to act as Arbitrator or Mediator to the dispute.

Agreement to Mediate

The mediator should proceed and confirm the agreement to mediate with the parties, whereby they agreed to mediate the dispute and present to the parties a copy of an “ agreement to mediate” [18] which contains all the above and a clause setting out how the parties could make a complaint if a party is not satisfied with the professional behaviour [19]  of the mediator.

A clause setting out what data will be processed/stored and for what period, should be cited as well as information as to the confidentiality of the process. [20]  The mediator must also inform the parties as to their right to seek legal advice, [21]  the way the mediation can be terminated, [22]  and such other terms as agreed by the parties. [23]

An important issue, during this stage, the mediator should enquire as to any potential conflict of interest that may impede him/her from acting as mediator. [24]  Or any acquaintances associated with the parties to the mediation or their representatives to ascertain neutrality and impartiality in the process [25] . This stage of the process will assist the mediator in assessing the parties’ mood, behaviour and decide whether to have the parties in a joint discussion or private session (Caucus). [26]

The Mediation Process

In this phase, the mediator will usually meet each party individually, and deal with any queries or concerns they may have and prepare them for a joint meeting. At this stage the mediation agreement should have been signed. When the parties are brought together, the mediator will have his/her first opportunity to assess the dynamic between the parties.

Mediators generally follow a common plan [27]  for their mediation session [28] . This can include:

• An opening statement by the mediator, identifying himself/herself to the parties, outlining his/her credentials,
• Setting out the ground rules for the mediation,
• reinforcing the mediation agreement, emphasising the voluntary nature of the process,
• review the confidentiality of the process to ensure the parties understand what can and cannot be held in confidence [29]  and defining his/her role [30]  as a facilitator [31]  rather than a decision maker. [32]
• Finally the mediator should congratulate the parties for attempting to settle their dispute and assert confidence in the process they are about to undertake. [33]

After the mediator has made his or her opening statement, the parties will proceed to make their own opening statements uninterrupted.

Mediation Skills

A qualified mediator exercises the skills of active listening and carefully pays attention to the opening statement of the parties, so that he or she can gain an initial view of the real source of the problem.  It will also  assist the mediator in determining who may need an individual meeting, commonly referred to as caucuses.

The mediator uses excellent communication skill to enable him/her to summarise and reframe the problem of what the parties described in their opening statement, with the use of positive language, creating trust and making sure that she/he captures the parties’ views, needs and emotions. [34]

Information Gathering Stage

The mediation moves into an information gathering stage, where the mediator will ask the parties questions to identify problem areas and common issues and may allow them to discuss the issues with each other rather than the mediator.

This is an important opportunity will assist the parties to focus less on their position and more on their interest. The mediator must maintain a positive environment, defusing negative emotions and enforcing behavioural rules to tackle rudeness and or interruptions. This stage of the process can take on a joint session or private session (Caucus) between the mediator and one of the parties. Where sensitive issues are discussed, or when the parties need to cool off and refocus, caucus is the appropriate forum.

When the mediator holds caucuses with a party, he or she should explain the rules on confidentiality and the  “without prejudice privilege” [35]  before starting the session and at the end of the meeting. The mediator should verify what information the parties wish to keep confidential and what information can be disclosed.

Exploration Stage

The mediation will then move to an exploration phase, where the mediator will ask further questions of each of the parties to establish common ground by uncovering and clarifying the parties’ hidden interests if any, [36]  and shape the agenda for the mediation, which may include joint and individual meetings (caucuses).

The mediator may encourage each party to acknowledge the other side’s interests even if they do not agree with them, to work on possible solutions. Generally, participants find a therapeutic value in being able to articulate their feelings in an atmosphere in which the other side is prepared to acknowledge such concerns and, even they do not accept them in full, at least recognise that they are of importance to the other.

During the information gathering and the exploration phase, instances may arise, where the parties become entrenched in their position, get annoyed, reach flashpoint in an ongoing state of tension, disagree about specific incidents and issues that have proved difficult to let go.

A skilled mediator shows empathy and sensitivity to allow such expressions, but not to compromise the goal and progress achieved. At the end of this session, the mediator should have clarity on the parties’ issues, needs and interest to prepare the ground for settlement agreement.

Breaking a Deadlock: Bargaining & Settlement

After the exploratory phase, the mediation moves into the bargaining phase where the mediator brings the parties to the Zone Of Potential Agreement (ZOPA).

At the bargaining stage, the mediator’s task is to make the parties comfortable with making concessions, until they reach a mutually acceptable compromise. This can shift the parties from viewing the problem in Zero Sum terms towards that of mutual benefits and shared gains. [37]  This method assists in preventing negotiation deadlocks. [38]

Where the parties cannot reach a substantive agreement, or are deadlocked, the mediator will guide the parties by using a number of techniques of direct and indirect negotiation skills,  preparing the parties for reality testing and risk assessment such as Best Alternative To a Negotiation Agreement (BATNA) and Worst Alternative To a Negotiation Agreement (WATNA).

The mediator must have persuasion skills for use in the process of negotiation, to identify the constraints (legal, financial, and practical) which will hamper finding a solution [39]  and convey impressions or ideas that alter the other’s perception of a situation or proposal by putting forward a realistic alternative.

A mediator skilled in managing people’s expectations, will exercise some level of pressure on the parties during the negotiation process. It will also give the parties enough freedom to articulate on their views to achieve a good outcome.

Towards a Settlement Agreement

At the conclusion stage [40] , the parties may consider proceeding by drafting the settlement proposal, if any was agreed, In the settlement proposal, the parties would have outlined new terms of the contract if any, performance of same and the deadline within which the performance will be carried out. 

The time set will need to be a realistic time. The parties may also decide whether the said settlement agreement will be binding on the other. [41]  The parties may also consider whether they wish to avail of the mediation again if future grievances arise.

Developments in Policy

The use of mediation in Ireland continues to be promoted by both industry and legal professionals, due to the possibility for resolution.  However, neither is it a panacea and in some circumstances, the courts are the most appropriate forum.

The Mediation Act 2017, changes to the Civil Liability & Courts Act 2004, as well is its promotion in a wide number of strategy proposals, all point to expanding use in a wide range of contracts and contexts. Indeed, the Report of the Judicial Planning Working Group provides an explicit recommendation:

Recognising the right of persons to have recourse to the Courts, it is recommended that every opportunity be taken to utilise ADR mechanisms such as mediation, arbitration and conciliation in appropriate circumstances and on a voluntary basis, to resolve disputes in areas in which they are under-utilised which should alleviate the burden on judicial time.

We think of mediation as a process rather than a dry formula because the parties are human and their motivations, and perceived interests, are rarely simple or straightforward. Furthermore, the mediator is a facilitator and is not there to adjudicate or impose solutions.

Those who have a positive experience of the mediation process view it as progressive, in that it allows space and flexibility to deal with sometimes complex, intertwined and personal positions, that the court setting may not be suitable.

Similarly, an experience legal advisor and mediator will be to identify the conditions where mediation is not a viable option, and that the court litigation process may the best in terms of advancing matters. Regardless, the qualities, experience and nuance of a mediator can be determinative of whether a matter at mediation falls or stands, and whether the parties sustainably proceed beyond the current dispute.

The views expressed above are the author’s own and do not reflect the views of The Bar of Ireland.

Alternative Dispute Resolution Services at The Bar of Ireland

A significant number of members of The Bar of Ireland are accredited mediators, and all barristers can act as arbitrators. They offer a wide range of experience in many areas of law.

[1] Penelope McRedmond, Mediation Law (Reprinted 2019, Bloomsbury Professional Ltd 2018) para [1.28] at p15.

[2] Law Reform Commission, Report on Alternative Dispute Resolution: Mediation and Conciliation (LRC 98-2010) (Dublin, November 2010), CHAPTER 2 ADR: TERMINOLOGY & SCOPE, Parra [2.25] p19 at   https://www.lawreform.ie/_fileupload/reports/r98adr.pdf

[3] Christopher Moore, Summary of “The Mediation Process: Practical strategies for Resolving Conflict” available at https://www.beyondintractability.org/bksum/moore-mediation

[4] The Mediator’s Institute of Ireland, Before Mediation, at https://www.themii.ie/about-mediation/mediation-process/before-mediation [accessed 09 March 2022]

[5] s23 (1), Mediation Act 2017 Applicable to mediation sessions in family law and succession proceedings

[6] Penelope McRedmond, Mediation Law (Reprinted 2019, Bloomsbury Professional Ltd 2018) para [3.150] at p123 And Atlantic Shellfish v Cork County Council et al [2015] IEHC 570.

[7] Penelope McRedmond, Mediation Law, Chapter 4, Voluntariness (Reprinted 2019, Bloomsbury Professional Ltd 2018) para [4.04] at p134.

[8] Penelope McRedmond, Mediation Law , Chapter 6 (Reprinted 2019, Bloomsbury Professional Ltd 2018) para [6.23] at p178.

[9] Penelope McRedmond, Mediation Law (Reprinted 2019, Bloomsbury Professional Ltd 2018) para [6.27] at p180.

[10] Penelope McRedmond, Mediation Law (Reprinted 2019, Bloomsbury Professional Ltd 2018) para [1.32] [1.33] at p17-18.

[11] s19(1)(2)(3). Mediation Act 2017.

[12] The Mediator’s Institute of Ireland, Preparation for the mediation , para 3, accessed at https://www.themii.ie/about-mediation/mediation-process/before-mediation

[13] Honorable Society of King’s Inns, Alternative Dispute Resolution Course Manual p.57

[14] Penelope McRedmond, Mediation Law (Reprinted 2019, Bloomsbury Professional Ltd 2018) para [3.150] at p123.

[15] S8(1)(b)(i)(ii)(iii) Mediation Act 2017.

[16] S8 (1)(c) Mediation Act 2017.

[17] s7(a)(b)(c). Mediation Act 2017.

[18] s7. Mediation Act 2017

[19] Penelope McRedmond, Mediation Law (Reprinted 2019, Bloomsbury Professional Ltd 2018) para [3.62] at p65. See s50 of the Mediators Institute of Ireland’s Code of Ethics and Practice and s10 (1) (e) Mediation Act 2017, states that disclosure of confidential information may be disclose by the mediator in order to defend him/herself against such proceedings.

[20] Farm Assis Ltd v The Secretary of State for the Environment Food and Rural Affairs (No. 2) [2009] EWHC 11O2 (TCC); [2009] B.R.L 399 (TCC)

[21], s7(d)(e), s10(2), Mediation Act 2017.

[22]s7(f). Mediation Act 2017.

[23] Penelope McRedmond, Mediation Law (Reprinted 2019, Bloomsbury Professional Ltd 2018) para [3.62] at p65.

[24] s8 (2)(a). Mediation Act 2017.

[25] S8(2)(b) Mediation Act 2017.

[26] The mediator’s Institute of Ireland, Preparation for the mediation , para 3, accessed at https://www.themii.ie/about-mediation/mediation-process/before-mediation

[27] Law Reform Commission, Report on Alternative Dispute Resolution: Mediation and Conciliation (LRC 98-2010) (Dublin, November 2010), CHAPTER 2 ADR: TERMINOLOGY & SCOPE, Parra [2.31] p20 at   https://www.lawreform.ie/_fileupload/reports/r98adr.pdf

[28] The mediator’s Institute of Ireland, The Mediation , accessed at https://www.themii.ie/about-mediation/mediation-process/before-mediation

[29] s10(2) (a)(b)(c)(d)(e). Mediation Act 2017.

[30] s7. Mediation Act 2017.

[31] Law Reform Commission, Report on Alternative Dispute Resolution: Mediation and Conciliation (LRC 98-2010) (Dublin, November 2010), CHAPTER 2 ADR: TERMINOLOGY & SCOPE, Parra [2.32] p21 at   https://www.lawreform.ie/_fileupload/reports/r98adr.pdf

[32] Penelope McRedmond, Mediation Law (Reprinted 2019, Bloomsbury Professional Ltd 2018) para [2.02] [2.03] at p21-22.

[33] The mediator’s Institute of Ireland, The Mediation , accessed at https://www.themii.ie/about-mediation/mediation-process/before-mediation

[34] Jennifer E. Beer & Caroline C. Packard with Eileen Stief, The Mediator’s Handbook , (4 th , Edn, new society Publishers) at p95

[35] Mediation Act 2017 s10(3) Evidence introduced into or used in mediation that is otherwise admissible or subject to discovery in proceedings shall not be or become inadmissible or protected by privilege in such proceedings solely because it was introduced into or used in mediation.

[36] Law Reform Commission, Report on Alternative Dispute Resolution: Mediation and Conciliation (LRC 98-2010) (Dublin, November 2010), CHAPTER 2 ADR: TERMINOLOGY & SCOPE, Parra [2.33] p21 at   https://www.lawreform.ie/_fileupload/reports/r98adr.pdf

[37] Zero Sum negotiations result in an advantage for one side equating to an equivalent loss for the other. A non-zero-sum game is one where both parties can gain without the other losing. Oxford Dictionary for the Business World , OED, 1993. The theory originates in mathematics of Jon van Neuman and economics of Oskar Morganstern.  

[38] Law Reform Commission, Report on Alternative Dispute Resolution: Mediation and Conciliation (LRC 98-2010) (Dublin, November 2010), CHAPTER 2 ADR: TERMINOLOGY & SCOPE, Parra [2.32] p21 at   https://www.lawreform.ie/_fileupload/reports/r98adr.pdf

[39] The mediator’s Institute of Ireland, Preparation for the mediation , para 3, accessed at https://www.themii.ie/about-mediation/mediation-process/before-mediation .

[40] Penelope McRedmond, Mediation Law , Chapter 11, Mediation and the European Union (Reprinted 2019, Bloomsbury Professional Ltd 2018) para [11.16] at p321.

[41] See [11.18] p321.

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Theory and Practice of International Mediation

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This volume brings together some of the most significant papers on international conflict mediation by Professor Jacob Bercovitch, one of the leading scholars in the field.

It has become common practice to note that mediation has been, and remains, one of the most important structures of dealing with and resolving social conflicts. Irrespective of the level of political or social organization, of their location in time and space, and of the political sophistication of a society, mediation has always been there to help deal with conflicts. As a method of conflict management, the practice of settling disputes through intermediaries has had a rich history in all cultures, both Western and non-Western. In some non-Western countries (especially in the Middle East and China) mediation has been the most important and enduring structure of conflict resolution. Jacob Bercovitch has been at the forefront of developments in international conflict mediation for more than 25 years, and is generally recognized as one of the most important scholars in the field. His theoretical and empirical analyses have come to define the parameters in the study of mediation.

This volume will help scholars and practitioners trace the history of the field, its position today and its future and will be of much interest to all students of mediation, negotiation, conflict management, international security and international relations in general.

TABLE OF CONTENTS

Chapter 1 | 12  pages, introduction: or how to study and do research on mediation, part | 2  pages, part i the nature and theory of mediation, chapter 2 | 20  pages, introduction: putting mediation in context, chapter 3 | 18  pages, the study of international mediation: theoretical issues and empirical evidence (with allison houston), chapter 4 | 12  pages, social research and the study of mediation: designing and implementing systemic archival research, chapter 5 | 28  pages, mediation in international conflicts: theory, practice and development, chapter 6 | 12  pages, mediation success or failure: the search for the elusive criteria, part ii case studies in mediation, chapter 7 | 26  pages, a case study of mediation as a method of international conflict resolution: the camp david experience, chapter 8 | 18  pages, conflict management and the oslo experience: assessing the success of israeli–palestinian peacemaking, part iii quantitative studies in mediation, chapter 9 | 19  pages, negotiation or mediation an exploration of factors affecting the choice of conflict management in international conflict (with richard jackson), chapter 10 | 35  pages, why do they do it like this an analysis of the factors influencing mediation behaviour in international conflicts, part iv current issues in mediation research, chapter 11 | 19  pages, managing internationalized ethnic conflict: evaluating the role and relevance of mediation, chapter 12 | 19  pages, culture and international mediation: an empirical assessment (with ole elgström), chapter 13 | 16  pages, the management and termination of intractable international conflicts: conceptual and empirical considerations (with paul diehl and gary goertz), chapter 14 | 16  pages, preventing deadly conflicts: the contribution of international mediation.

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Beyond Intractability

The Hyper-Polarization Challenge to the Conflict Resolution Field We invite you to participate in an online exploration of what those with conflict and peacebuilding expertise can do to help defend liberal democracies and encourage them live up to their ideals.

Follow BI and the Hyper-Polarization Discussion on BI's New Substack Newsletter .

Hyper-Polarization, COVID, Racism, and the Constructive Conflict Initiative Read about (and contribute to) the  Constructive Conflict Initiative  and its associated Blog —our effort to assemble what we collectively know about how to move beyond our hyperpolarized politics and start solving society's problems. 

By Brad Spangler

October 2003 Updated in 2013

General Basis and Background of Transformative Mediation

In their 2004 publication, The Promise of Mediation , Robert A. Baruch Bush and Joseph Folger explicitly outlined a framework for the practice of transformative mediation. Although practitioners had already touched on the possibilities of mediation in this realm, Baruch Bush and Folger's work defined transformative mediation, in contrast to the dominant orientation of problem-solving mediation . Problem-solving mediation is aimed at resolving specific disputes between parties and coming up with a mutually acceptable solution to the immediate, short-term problem. In problem-solving mediation, the mediator normally plays a very active role in guiding the process.

Instead, Bush and Folger proposed that mediation can effect much deeper changes in people and their interpersonal relationships, beyond just remedying a short-term problem. They proposed a way of practicing mediation that seeks to address deeper levels of social life. In the preface of their seminal work, they stated that, "mediation's greatest value lies in its potential not only to find solutions to people's problems but to change people themselves for the better, in the very midst of conflict."[1] By employing a specific perspective on mediation practice as well as specific techniques, they believe mediation possesses the power to change how people behave not only toward their adversary in a particular conflict, but also in their day-to-day lives thereafter. Mediation, in their opinion, can transform individuals. For mediators who adhere to the framework of transformative mediation, achieving this type of long-term change is more important than solving a specific problem between parties.

Two Keys to Transformative Mediation: Empowerment and Recognition

The transformative approach to mediation does not seek resolution of the immediate problem, but rather, seeks the empowerment and mutual recognition of the parties involved. Empowerment , according to Bush and Folger, means enabling the parties to define their own issues and to seek solutions on their own. Recognition means enabling the parties to see and understand the other person's point of view -- to understand how they define the problem and why they seek the solution that they do. (Seeing and understanding, it should be noted, do not constitute agreement with those views.) Often, empowerment and recognition pave the way for a mutually agreeable settlement, but that is only a secondary effect.

The primary goal of transformative mediation is to foster the parties' empowerment and recognition, enabling them to approach their current problem, as well as later problems, with a stronger, more open view. It should be noted as well that achieving empowerment and recognition is assessed independently of any particular outcome of the mediation.[2] This approach, according to Bush and Folger, avoids the problem of mediator directiveness, which so often occurs in problem-solving mediation. Transformative mediation instead puts responsibility for all outcomes squarely on the disputants.

Empowerment

Empowerment is used by Bush and Folger in a way that differs from common usage. It does not mean power-balancing or redistribution, but rather, increasing the skills of both sides to make better decisions for themselves (see empowerment debate for more on common usage). Specifically, Bush and Folger define the term "empowerment" as: "The restoration to individuals of a sense of their own value and strength and their own capacity to handle life's problems."[3] They explain that through empowerment, disputants gain "greater clarity about their goals, resources, options, and preferences" and that they use this information to make their own "clear and deliberate decisions."[4]

• Clarity about goals means that parties will gain a better understanding of what they want and why, and that their goals are legitimate and should be considered seriously.
• Clarity about resources means that the parties will better understand what resources are available to them and what resources they need to make an informed choice. In addition, parties need to learn that they hold something that is of value to the other party, that they can communicate effectively with the other party, and that they can utilize their resources to pursue their goals.
• Clarity about options means that the parties become aware of the range of options available to them, they understand the relative costs and benefits of each option, and that they understand that the choice of options is theirs alone to make.
• Clarity about preferences means that the parties will reflect and deliberate on their own, making a conscious decision about what they want to do, based on the strengths and weaknesses of both sides' arguments and the advantages and disadvantages of each option.

Developing clarity in these areas will strengthen parties' own ability to resolve the conflict in which they are involved. This type of empowerment may be called skill-based empowerment, meaning that parties are empowered by improving their own conflict-resolution skills. Parties are empowered when they learn how to listen, communicate, analyze issues, evaluate alternatives, and make decisions more effectively than they could before.[5]

Empowerment occurs in transformative mediation when the mediator watches for opportunities to increase the parties' clarity about or skills in these areas. The transformative mediator aims to foster parties' clarity and skills in a way that allows the parties to maintain control of both the process and the substance of the discussions. Unlike problem-solving mediators, transformative mediators are careful to take a secondary role, rather than a leading role in the process. It is said that they "follow the parties" around, and let the parties take the process where they want it to go.

Recognition

By recognition , Bush and Folger mean considering the perspective, views, and experiences of the other. Recognition, they say, "means the evocation in individuals of acknowledgment and empathy for the situation and problems of others"[6] (see empathic listening ). As with empowerment, the effect of recognition in transformative mediation is meant to extend beyond a particular conflict and into the parties' everyday lives. In the long term, achieving recognition in transformative mediation should help expand parties' ability and willingness to relate to others in a more understanding and considerate way.[7]

Recognition is something one gives, not just something one gets. It is a process of acknowledging one's adversary as a human being with his or her own legitimate situation and concerns. According to Bush and Folger, recognition must be based on empowerment in that parties must be confident in their freedom to make decisions regarding the course of the dispute.[8] Given the importance of empowerment, transformative mediators allow the parties to choose how much they want to recognize the views of the opponent. It is possible that recognition will lead to complete reconciliation between disputants. On the other hand, parties may recognize each other to a much lesser extent, and may be willing to suspend self-interest only momentarily, or not at all, in order to recognize the other.

Comparing Transformative Mediation to Problem-Solving Mediation

There are many differences between transformative and problem-solving mediation. The only similarity is that each uses a third party to assist the disputing parties to deal with the dispute in a new way. That "new way," however, differs considerably from one process to the other, as can be seen in Figure 1, below.

Comparison of Transformative and Problem Solving Mediation

Note: These are idealized descriptions. Actual mediators will hold these ideas and follow these actions to a lesser or a greater degree.

Conflict is an opportunity for moral growth and transformation. Conflict is a problem in need of a solution. Conflict tends to be a long-term process. Conflict is a short-term situation. Facilitate parties' empowerment and recognition of others. Take collaborative steps to solve identified problem; maximize joint gains. Parties' empowerment and recognition of others. Settlement of the dispute. Secondary: parties are seen as experts, with motivation and capacity to solve own problems with minimum help. Mediator is expert, who directs problem-solving process. Mediator is responsive to parties. Mediator directs parties. Mediator explains concept of mediation, but lets parties set goals, direct process, design ground rules. Makes it clear settlement is only one of a variety of possible outcomes. Mediator explains goal is settlement, designs process to achieve settlement, sets ground rules. May consult parties about these issues, but mediator takes lead. Mediator "microfocuses" on parties' statements, lets them frame issues themselves. Mediator "categorizes" case, frames it for disputants. Mediators allow parties to take discussions where they want them to go; encouraging discussion of all issues that are of importance to the parties, regardless of whether or not they are easily negotiable; Mediators encourage mutual recognition of relational and identity issues as well as needs and interests. Mediators direct the discussions, dropping issues which are not amenable to negotiation (for example, relational or identity issues) and focusing on areas "ripe" for resolution (usually negotiable interests). Mediators encourage an examination of the past as a way of encouraging recognition of the other. Mediators discourage discussion of the past, as it tends to lead to blaming behaviors; focus instead is on the present and future -- how to solve the current problem. Emotions are seen as an integral part of the conflict process; mediators encourage their expression. Emotions are seen as extraneous to "real issues." Mediators try to avoid parties' emotional statements, or emotions are tightly controlled. Mediators encourage parties' deliberation of situation and analysis of options; parties' design settlement (if any) themselves and are free to pursue other options at any time. Mediators use their knowledge to develop options for settlement; can be quite directive about settlement terms. Mediators focus on parties' interactions, looking for opportunities for empowerment and/or recognition of the other. Mediators focus on parties' situation and interests, looking for opportunities for joint gains and mutually-satisfactory agreements. Time is open-ended; parties spend as much time on each activity as they want to. No pre-set "stages" as in problem-solving mediation. Mediator sets time limits, encourages parties to move on or meet deadlines. Mediator moves parties from "stage" to "stage." Any increase in parties' empowerment and/or recognition of the other -- "small steps count." Mutually-agreeable settlement. Copied (with permission) from " Transformative Approaches to Conflict ," by Heidi Burgess and Guy Burgess with Tanya Glaser and Mariya Yevsyukova. Problem-solving or "settlement-oriented" mediation, which is by far the dominant approach in the field today, is just what the name implies; it is focused on solving a problem by obtaining a settlement. The settlement-oriented mediator usually explains that this is the purpose at the outset, and defines a process that will assist the parties to work toward that goal. All of the mediator's actions are designed to facilitate settlement. Emotions that might escalate anger and thus prevent a settlement are controlled. Issues that are nonnegotiable are diverted, while parties are encouraged to focus on negotiable interests. Mediators tend to discourage a discussion of the past as that often involves blame, which can make progress more difficult. Rather, parties are encouraged to focus on what they want in the future, and develop ways in which their interests can be met simultaneously (see joint/assisted reframing ). Sometimes the settlement-oriented mediator acts more as an arbitrator than a transformative mediator, proposing a solution and working hard to "sell" it to the parties (see arbitration ). Settlement-oriented mediators often try to keep the parties moving forward, encouraging them to move from one stage to the next as quickly as possible and using a deadline as an inducement to come to an agreement. Transformative mediators work very differently. They explain in the opening statement that mediation provides a forum for the parties to talk about their problem with a neutral third party present. It is explained that this can be helpful for clarifying the nature of the problem from both parties' points of view. It also helps disputants develop a range of options for dealing with the situation. This process should help the clients make better choices about how to proceed, and may help them better understand the views of the other party. This understanding may enable the clients to reach a mutually satisfactory solution, or it may suggest other approaches for handling the situation. Thus settlement is presented as one, but clearly not the only possible, successful outcome of mediation. Usually, transformative mediators will then work with the parties to develop goals, ground rules , and a process they want to use. Mediators will make suggestions about process and ask questions (usually to encourage either empowerment or recognition of the other), but they will not direct the conversation, nor will they suggest options for settlement. In transformative mediation, this is the parties' job. Bush and Folger describe the mediator's job as "following the parties around." The mediator follows the parties' leads and then helps them clarify for themselves and the other, what their real concerns are and how they want to see them addressed. Sometimes, recognition by the other is all that is really needed to reach mutual satisfaction. Other times, parties must go further and negotiate interests. Interest-based negotiation is, of course, allowed in a transformative process, but usually shares center stage with the discussion of feelings and relationship issues. The definition of success also differs in the two kinds of mediation. Typically, settlement-oriented mediation is not considered successful unless a settlement is reached. Transformative mediation, however, is successful if one or both parties becomes empowered to better handle their own situation or the parties better recognize the concerns and issues of the other side. Very often, the empowerment and recognition gained by the parties allow them to develop a mutually agreeable outcome. However, according to Bush and Folger, the opposite often does not occur. The settlement-oriented mediation process does not lead to empowerment and recognition, because it tends to ignore relationship issues in favor of narrower, more concrete interests. Bush and Folger's Ten Hallmarks of Transformative Mediation In a 2007 follow-up article to their book The Promise of Mediation , Bush and Folger presented a list of 10 hallmarks of transformative mediation that distinguish its practice from other forms of third-party intervention processes. One may summarize these hallmarks as follows:[9] In the opening statement, the transformative mediator explains the mediator's role, and the objectives of mediation as being focused on empowerment and recognition. Transformative mediators leave responsibility for the outcomes with the parties. Transformative mediators are not judgmental about the parties' views and decisions. Transformative mediators take an optimistic view of the parties' competence and motives. Transformative mediators allow and are responsive to parties' expression of emotions. Transformative mediators allow for and explore parties' uncertainty. Transformative mediators remain focused on what is currently happening in the mediation setting. Transformative mediators are responsive to parties' statements about past events. Transformative mediators realize that conflict can be a long-term process and that mediation is one intervention in a longer sequence of conflict interactions. Transformative mediators feel (and express) a sense of success when empowerment and recognition occur, even in small degrees. They do not see a lack of settlement as a "failure." Applying the Transformative Approach Transformative mediation is a relatively new concept, though many mediators had been acting in this way for a long time, but did not have a name for their style until Bush and Folger defined transformative mediation as a concept. Because empowerment and recognition are phenomena that happen to people, the transformative approach is usually thought to be useful in interpersonal conflicts such as family conflicts, conflicts between neighbors, and conflicts between co-workers. However, Bush and Folger argue in the Promise of Mediation that the approach is just as applicable in other kinds of settings. For example, legal mediation has been criticized for being overly directive compared to other forms of mediation. Bush and Folger argue that legal mediation would benefit greatly from the adoption of a transformative approach, leaving directive intervention to the courts and judges. The same is true, they argue, for business mediation. Mediation with organizations, rather than individuals, becomes more complicated. Organizations are always represented by individuals, but the changes and learning that those individuals experience are hard to relate back to the people they represent. Problems can develop when the mediation process transforms representatives, but not their constituents, who are not at the table (see stakeholder representatives ). Methods must be found to extend this transformation to constituencies, if the effect of transformative mediation is to have widespread significance at the organizational, public policy, or societal level. The same is true for inter-group and international situations. Improving relationships and transformation of the conflicts to ones that are less destructive is critical in these situations, but transforming the leaders or the group representatives is not enough. Somehow, this transformation must be brought to the grassroots level before conflict transformation or resolution can be achieved. [1] Robert A. Baruch Bush and Joseph P. Folger, The Promise of Mediation: The Transformative Approach to Conflict , 2nd ed. (San Francisco: Jossey-Bass Publishers, 2004) < http://www.beyondintractability.org/bksum/bush-promise >. [2] Ibid.2. [3] Ibid, 2. [4] Robert A. Baruch Bush and Joseph P. Folger, "Transformative Mediation and Third-Party Intervention: Ten Hallmarks of a Transformative Approach to Practice," Conflict Resolution Quarterly 13, no. 4 (January 2007) < http://www.beyondintractability.org/library/external-resource?biblio=22838 >. [5] Baruch Bush and Folger, "Transformative Mediation and Third-Party Intevention," 85-87. [6] Ibid, 2. [7] Ibid, 94. [8] Ibid, 93. [9] Baruch Bush and Folger, " The Promise of Mediation," 266-275. [10] There is a long discussion of the Bush and Folger approach in the Dugan essay on Empowerment . There is also much material that is discussed in both essays. Use the following to cite this article: Spangler, Brad. "Transformative Mediation." Beyond Intractability . Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado, Boulder. Posted: October 2003 < http://www.beyondintractability.org/essay/transformative-mediation >. Additional Resources The intractable conflict challenge. Our inability to constructively handle intractable conflict is the most serious, and the most neglected, problem facing humanity. Solving today's tough problems depends upon finding better ways of dealing with these conflicts.   More... 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Photo Credits for Homepage, Sidebars, and Landing Pages Contact Beyond Intractability    Privacy Policy The Beyond Intractability Knowledge Base Project  Guy Burgess and Heidi Burgess , Co-Directors and Editors  c/o  Conflict Information Consortium Mailing Address: Beyond Intractability, #1188, 1601 29th St. Suite 1292, Boulder CO 80301, USA Contact Form Powered by  Drupal production_1 Bringing you the Best Analytical Legal News Experts Corner Cyril Amarchand Mangaldas Mediation: The Future of Dispute Resolution by Ankoosh Mehta*, Durga Agarwal** and Maitrayi Jain*** Click to share on Facebook (Opens in new window) Click to share on Twitter (Opens in new window) Click to share on LinkedIn (Opens in new window) Click to share on WhatsApp (Opens in new window) Click to print (Opens in new window) Click to email a link to a friend (Opens in new window) Click to share on Telegram (Opens in new window) Click to share on Reddit (Opens in new window) Click to share on Tumblr (Opens in new window) Click to share on Pinterest (Opens in new window) Click to share on Pocket (Opens in new window) Click to share on Skype (Opens in new window) I. Introduction For eons, Indians have been reliant on court-driven litigation and, more recently on arbitration for resolving commercial disputes. The significance and impact of mediation in amicable dispute resolution is vastly underrated and under appreciated as reliance on mediation has been restricted to only family disputes and other elementary matters. However, the advent of COVID-19 has forced the world, including the legal industry, to change the norms and to adapt and reform around the new normal and we believe that the insurgence of COVID-19 will give us an opportunity to re-discover the significance of mediation as an effective form of dispute resolution mechanism, especially in commercial matters. II. Evolution of Mediation Mediation was popular even before it found a place in the books of law. Ancient Greek civilisation had village elders resolving fights between the locals. In India, instances of mediation can be found in the village panchayat system, wherein, the village elders or ‘Panchs’ resort to mechanisms like mediation to amicably resolve family and land related disputes between the   locals. Acknowledging the importance of mediation, the Indian legislature enacted the Legal Services Authorities Act, 1987 [1] , which introduced the Lok Adalat system. Lok Adalats provide a platform to resolve disputes in the pre-litigation stage by way of amicable settlement. Thereafter, in 1988, the 129 th Law Commission Report on Urban Litigation and Mediation as Alternative to Adjudication and the Arrears Committee Report, also known as the Justice Malimath Committee Report was published. Considering the backlog of cases lying before the Indian courts, Justice Malimath Committee Report recommended that the parties be encouraged to refer their disputes to alternate dispute resolution mechanisms (“ADRs”) [2] . These recommendations eventually paved the way for the Code of Civil Procedure (Amendment) Act, 1999 [3] , which introduced Section 89 of the Code of Civil Procedure, 1908 (“ CPC ”). Section 89 CPC empowered the courts to refer disputes, with the potential to be settled to ADRs (which included arbitration, conciliation, mediation, judicial settlement) [4] . On April 9, 2005, the Tamil Nadu Mediation and Conciliation Centre, the first court annexed mediation centre was inaugurated [5] . Thereafter, in August 2005, the ex-Chief Justice of India, Justice R.C. Lahoti, constituted a Mediation and Conciliation Project Committee for imparting mediation training for Judges [6] . As of date, several High Courts have their own mediation centres and rules governing them. Please see below a table providing the various initiatives taken by different High Courts in India: Delhi The Delhi High Court has its own Mediation and Conciliation Centre known as Samadhan and they have regular training workshops of advocates enrolled in the Delhi Bar Association. Mumbai The Mediation Monitoring Committee of the Bombay High Court operates a mediation scheme to resolve pending cases before the District Courts, Taluka Court, City Civil Court, Small Causes Court, etc., by providing litigants an opportunity to resolve their disputes by mediation. Calcutta The Calcutta High Court recently organised a workshop for Judges at different courts to promote mediation. Experts were brought in from  US to impart their expertise on the subject- matter. Realising the potential of mediation for speedy and cost-effective dispute resolution, an amendment to the Commercial Courts Act, 2015, was made in 2018, introducing Section 12-A, which mandatorily requires the parties to attempt to mediate their disputes before initiating judicial proceedings [7] . Recently, the Supreme Court in January 2020, set up a panel, headed by Mr Niranjan Bhat, to recommend and draft legislation, codifying mediation practice in India. These attempts made by the legislature and judiciary to bring mediation in the mainstream have been futile as the true potential of mediation still remains underutilised . III. Statistical Analysis of Mediation in India Vidhi Centre for Legal Policy (“Vidhi”) published a report called “Strengthening Mediation in India” in December 2016 (“the Report”) [8] , wherein Vidhi, in collaboration with the Department of Justice, Ministry of Law and Justice, analysed the progress of court referred mediation [9] , focusing on the data provided by Bangalore Mediation Centre and Delhi High Court Mediation and Conciliation Centre. The table below shows certain key trends in mediation [10] : Karnataka 2.79% 4.83% 66% Delhi 2.86% 2.31% 56% According to the statistics available on the website of Kerala State Mediation and Conciliation Centre, matters referred to mediation show a success rate of 35.42% in 2016 [11] . These abysmal figures can be attributed to various factors, including reluctance of litigants to mediate, lack of awareness and inadequate infrastructure. IV. Why Mediation? Mediation is different from other forms of ADR such as arbitration, conciliation and settlement. Unlike litigation and arbitration, which are adversarial in nature, mediation is founded on pillars of cooperation and trust, and is similar to negotiation. A mediator acts as a facilitator between the parties to arrive at a solution, without dictating the settlement terms. The main difference between mediation and conciliation lies in the role played by a mediator and a conciliator. A conciliator has broader powers of intervention and is empowered to draft the terms of settlement. However, a mediator is a facilitator, who helps parties to resolve their problems on their own. A mediator can give suggestions and persuade the parties to arrive at a solution. Indian courts have always been over-burdened and the backlog of pending cases is daunting. Even though litigation provides an effective dispute resolution method, it does have various drawbacks, including exorbitant costs, undue delays and cumbersome procedure. In recent times, arbitration has gained popularity. Although arbitration provides solution to the various drawbacks of litigation, it remains to be an expensive ADR.On the other hand, mediation provides for a cost-effective manner of dispute resolution. It also provides parties an opportunity to resolve their disputes amicably, within a pre-decided time-frame. This helps them avoid the exorbitant cost incurred due to litigation and the undue delays, which are beyond their control. Mediation gives the parties the flexibility to decide the manner and procedure to be followed to resolve their disputes, depending on the nature of their dispute and the relation between the parties. It also allows the parties to arrive at a tailor-made solution, minimising an unfavorable impact. Parties have the autonomy to conduct a cost-benefit analysis before arriving at the most favourable solution. Additionally, unlike litigation, where the documents once filed become public, mediation allows the parties to keep their documents and discussions undertaken during the mediation, confidential. This is specifically relevant for the companies, as any adverse information about the company, can fluctuate share prices of the company. It is worth mentioning here that various multi-national corporations, companies and partnership firms have also realised the above mentioned benefits of mediation, which has resulted in them introducing clauses for mandatory mediation in cases of any disputes or disagreements between the parties. Even with all these advantages, mediation is still not a popular choice. V. Mediation in the wake of COVID-19 As already discussed in the introduction, this pandemic has placed us in a situation where we are forced to adapt to survive. Slowly and gradually, we are shifting from the traditional ways to modern and innovative ways. Mediation provides a viable alternative to resolve disputes. Under the current circumstances, it would be beneficial for the parties to act in cooperation instead of being adversarial, as an adversarial approach may not always yield a beneficial outcome. In light of the virus outbreak, jurists contemplate that a number of disputes will arise on the interpretation of force majeure clauses, material adverse effect clauses and termination clauses. While doing so, it is not always advisable to knock on the doors of the courts to seek justice, especially when such key clauses are missing or inadequately drafted. Therefore, while the courts are grappling with the existing backlog of cases, the restrictions in its functioning due to the lockdown and the fresh set of disputes arising due to the current scenario, we feel there might be a shift in the manner in which commercial disputes are or will be resolved, with increased reliance on mediation. Several Indian High Courts, including the High Court of Judicature at Bombay, Delhi High Court, Kerala High Court, etc., and various international organisations like the Singapore International Arbitration Centre, London Court of International Arbitration, International Chamber of Commerce have already formulated mediation rules. These rules are comprehensive, extensive and can be adopted by parties to deal with the procedural aspects of mediation. Parties also have the option of opting for adhoc arbitration, allowing them to decide on the procedure to be followed during mediation. Keeping in mind the above benefits and the role mediation can play in the times to come, Singapore International Mediation Centre has launched the SIMC COVID-19 Protocol [12] , providing business with an effective solution by way of expedited mediation for dispute resolution. A similar project has been launched by Georgian International Arbitration Centre in collaboration with Resolve and with assistance of European Union and United Nations Development Programme, allowing the parties to either refer their dispute to facilitation or mediation [13] . These moves show the preparedness of various organisations in accepting that mediation will bring the new dawn in dispute resolution, during and even after the pandemic. IV. Conclusion The outbreak of the COVID-19 pandemic has resulted in the introduction of various restrictions and changes in law by the legislature, thereby disrupting the functioning of business. Due to the lockdown initiated on account of the COVID-19 outbreak, the Indian economy is experiencing a steady downfall. People and businesses are fending for themselves and are making all efforts to survive. Market leaders are contemplating that the present situation will act as a hotbed for disputes. These new disputes would require speedy and cost-effective solutions. To contain the impact of the fast spreading virus, the courts have also been functioning at minimal capacity and only hearing urgent matters, which makes approaching the courts for dispute resolution a slightly challenging exercise. In the wake of the current situation, mediation appears to be a viable and effective alternative to traditional dispute resolution methods as it can deliver cost-effective and speedy resolution of disputes, especially in cases of commercial disputes. Considering the pandemic and the repercussions to follow, we envisage a shift in the dispute practice being driven by mediation. This shift would require us to be prepared and hence it is imperative to ensure we obtain the requisite training and the skill set to be able to meet the changing demands. *Partner, Cyril Amarchand Mangaldas **Associate, Cyril Amarchand Mangaldas ***Associate, Cyril Amarchand Mangaldas [1] Legal Services Authorities Act, 1987   [2] https://delhicourts.nic.in/dmc/history.htm , last visited on May 28, 2020. [3] Code of Civil Procedure (Amendment) Act, 1999 [4] Section 89   CPC  [5] http://www.hcmadras.tn.nic.in/mashist.html last visited on June 10, 2020. [6] https://delhicourts.nic.in/dmc/history.htm last visited on June 10, 2020. [7] Section 12-A, Commercial Courts Act, 2015 [8] https://doj.gov.in/sites/default/files/Final%20Report%20of%20Vidhi%20Centre%20for%20%20Legal%20Policy.pdf last visited on May 28, 2020. [9] There are two broad categories of mediation: (i) Court referred mediation, wherein, the courts while exercising their powers under Section 89 CPC, refer appropriate matters to mediations; and (ii) Private mediation, wherein, the parties to a dispute agree to mediate their disputes. [10] https://dakshindia.org/Daksh_Justice_in_India/14_chapter_04.xhtml#fn21 last visited on May 28, 2020. [11] http://keralamediation.gov.in/Statistics   last visited on May 28, 2020. [12] http://mediationblog.kluwerarbitration.com/2020/05/21/international-mediation-and-covid-19-the-new-normal/?doing_wp_cron=1591162205.3996729850769042968750 last visited on June 3, 2020 [13] http://giac.ge/giac-and-resolve-are-joining-forces-to-launch-covid19-business-support-initiative/ last visited on June 3, 2020. Section 125 CrPC: Can the second wife be entitled to maintenance from her husband? Delhi HC granted bail to a man accused of raping woman he met on dating app on pretext of marriage Do convicts have a fundamental right to procreate? Watch to know what Delhi High Court recently held Book release of 8th edition of “Criminology, Penology and Victimology” revised by Sanjay Vashishtha One comment. Hi Author, Thanks for sharing this informative post with us. I like this blog keep sharing. Join the discussion Leave a reply cancel reply. Your email address will not be published. Required fields are marked * Save my name, email, and website in this browser for the next time I comment. Notify me of follow-up comments by email. Notify me of new posts by email. This site uses Akismet to reduce spam. Learn how your comment data is processed . Home » Opportunities & Events » Essay Competitions » Essay Competition on Mediation by YCM [Online]: Register by Oct 18 Essay Competition on Mediation by YCM [Online]: Register by Oct 18 Vaibhavjeet Oct 10, 2023 No Comments YCM is organizing an Essay Competition on Mediation. They are India’s first Skill Builder and Service Provider for Dispute Resolution to Dispute Prevention for All. About the Opportunity YCM is excited to announce to you that they are coming up with YCM’s Essay Competition on Mediation. They are excited to read your insightful essays and creative narratives. This essay competition is your gateway to share your unique perspectives on Mediation with YCM. The topics for Students are: Topic 1: Where have you seen mediation in movies, or TV series, and analyze the principles. Topic 2: How you would see Mediation as a tool to resolve conflicts in everyday life The topics for Professionals are: Topic 1: Mediation in the Digital Age Topic 2: Data Protection and Confidentiality in Mediation Each article can be authored by only one author. The top 6 participants will be mentored by YCM to present their essays during National and International Events. Participation Certificates will be provided to all the participants who participated. Presentation The essays should not exceed 500 words. How to Register? Interested participants are required to register for the Competition by filling out the registration form through the link provided at the end of the post. Important Dates Last Date to Register: October 18, 2023 Last date of submission of essays: October 18, 2023 Fees & Payment Students – Rs. 100/- Professionals – Rs. 500/- The top 6 participants will be mentored by YCM to present their essays during National and International Events. Participation Certificate. Contact Information In case of any queries, please contact: Email: [email protected] Phone no.: (+91) 9159812388 Click here to register. Join Our WhatsApp Channel for Opportunity Updates Get Daily Updates Join our Telegram Channel for Opportunity Updates Get an Internship Add a Comment Cancel reply Your email address will not be published. Required fields are marked * Advertisement Congratulations! 🎉 Use this coupon inside the Lawctopus app to activate your 3 months’ free premium subscription. 🎦 Webinar on The Future of Legal Practice: How AI is Transforming the Industry? For Advertisements on Lawctopus +91 90235 43927 [email protected] Office hours: 11AM - 7PM For Lawctopus Law School +91 80474 94091 [email protected] Download our eBook on Get An Internship Israel-Hamas War The Heartache of Calling Israel Home I knew that as soon as we came home to Israel, I’d ask myself why we’d been so eager to get back. I’d disconnected for a few days in New York with my family, even stopped wearing the hostage necklace I wore every day, and I knew it would be hard to return. What I didn’t know was that the day we got back I’d hear that the bodies of six young hostages had been found , shot by Hamas shortly before the Israel Defense Force (IDF) got to them. In the weeks following Oct. 7, I couldn’t hear anything about the atrocities without breaking down. I was a new mother , only beginning to understand my role protecting the world’s most precious person, and it all felt too raw, too horrifying, too close. I walked out of rooms when people started talking. I watched no TV and avoided unnecessary news and shut down social media. I even averted my eyes in the street when I caught sight of the red letters on the hostage posters, name and age at the top, and “BRING HIM/HER HOME NOW!” printed beneath a smiling photograph. After some weeks had passed, and the radio started playing regular songs and not only sad ones, I let myself look up at one of the posters, into the eyes of a hostage. Alex Lobanov. He wore an apron and stood next to a lemonade dispenser and smiled back at me. The simplicity of the scene, contrasted with where I knew he was now, twisted my stomach. I thought of his mother. Read More: Scenes From Israel, Where Protesters Blame Netanyahu for the Deaths of Hostages At an intersection by my house hung a huge poster of Hersh Goldberg-Polin in a floral printed shirt. Having grown up near my office, in the Baka neighborhood of Jerusalem, in an American family like mine, he felt just one degree away from me. Many people I know knew him. Along with thousands of others, I walked with a flag to meet his funeral procession. I’d held a poster with Carmel Gat’s face on it – smile and curls – at one of the weekly protests for the return of the hostages a few months ago. She reportedly taught meditation and yoga to the other hostages to help them survive. Almog Sarusi was from Ra’anana, where I grew up. His father runs an electric store in my parents’ neighborhood and had a table outside his store with prayer cards and a picture of his son. I’d paused several times at Eden Yerushalmi’s poster and wondered who her friends were. I’d read about Ori Danino, who fled the tragic party on October 7 and then went back to save people. All dead. Abandoned. The night we were supposed to fly home from the States turned out to be the night (or morning, Israel time) of Hezbollah’s planned massive missile attack and Israel’s preemptive strike. At the gate, we received news alerts about the Tel Aviv airport shutting down, power outages up North, and Israel’s Defense Minister and IDF spokesperson warning civilians about the situation. For a few minutes – which coincided with the plane’s boarding – it looked like this might be the beginning of a much bigger war we’ve all been dreading. With little information and no time, my husband and I decided not to board. We didn’t want to take our toddler into a war zone. Shortly after the plane took off, it became clear that this was not a regional war – just another crazy day in Israel. But now we were stuck. Almost all airlines had stopped flying to Israel, and the remaining flights were fully booked. We spent 15 hours at JFK with a 20-month-old Imri, who shouted “up-up” at every airplane he saw, but we did not go up. At the end of another futile day at the airport that week, I walked straight up to the pilots. “Please,” I begged them. “Is there anything you can do? I want to get my family home.” What were we so anxious to get back to? Nothing, really. Work. Daycare. Our own washing machine. Buying overpriced cottage cheese at the minimarket down the road. Being home. We had Central Park, but I missed the little playground by our house where Imri rides his baby bike and eats other kids’ Bamba.   Finally, we made the very expensive decision to buy tickets from a different airline, with a nine-hour layover in Athens, and a 3:30 a.m. arrival in Israel. In the check-in line, an older Israeli couple smiled at Imri and told us their story of getting stuck without a flight. We met them again near the gate, looking for a smoking lounge. As soon as they found it, the woman sent her husband inside and then whispered to me, “He’s driving me crazy. If I don’t get some time away from him, I’m going to get divorced after 42 years.” That particular blend of humor and honesty, immediate closeness and hot-blooded temper -- I’d never met her, but I knew her. As the plane neared Ben Gurion Airport, I heard a woman behind me mutter, “Dear, fascist country.” Her words were pained and loving, like a disappointed mother. When we awoke the next morning, the names of the dead hostages they’d found were made public. It was like reading the news in those first few weeks, checking one outlet after the other to make sure I’d gotten it right. The kind of news you can’t get out of bed from. The kind of news that devastates, nauseates, doesn’t leave you. Shock that they’d survived this whole time, and disbelief that they were shot just before we rescued them. They should have been home. They should have hugged their parents and children and brothers and sisters so long ago. They should have been alive. Before we left for our trip, I’d started entertaining thoughts of relocation, like many people I know. Our liberal friends, many of whom are parents, are all wondering what we’re still doing here, with one war after the other, Jewish extremism on the rise, an economy that may soon fall apart, and a government seemingly more focused on resettling the Gaza Strip than on saving lives. “Why are we here?” I asked my husband Yoav on the night of the Iranian missile attack a few months ago. I had actually gone to sleepknowing there would be missiles a few hours later. We woke up at 2 a.m. to go to our neighbors’ bomb shelter, where Imri pet their dog as we waited for the sirens to cease. Then we walked back to our building and put him back to sleep. “How is this a normal place to raise a child?” At Monday night’s protest, a man held a poster in Hebrew that read, “I no longer recognize my country.” I looked at it for a long time. Here we are, in the place we were so desperate to come back to – feeling crushed, confused, and hopeless since we landed. Dreading tomorrow’s news.     But also feeling like we’re home.       And so with a tight chest and heavy legs, I drag myself outside with an Israeli flag week after week. To protest, fight, and try to protect everything good that still exists here. And to save the lives we still can. More Must-Reads from TIME How Nayib Bukele’s ‘Iron Fist’ Has Transformed El Salvador What Makes a Friendship Last Forever? How to Read Political Polls Like a Pro Long COVID Looks Different in Kids What a $129 Frying Pan Says About America’s Eating Habits How ‘Friendshoring’ Made Southeast Asia Pivotal to the AI Revolution Column: Your Cynicism Isn’t Helping Anybody The 32 Most Anticipated Books of Fall 2024 Contact us at [email protected] 'Founder mode' is the latest fault line in Silicon Valley Silicon Valley is split over the best way to run a company. An essay called "Founder Mode," inspired by Airbnb's Brian Chesky, says leaders need to be more hands-on. While many leaders agree, some think managers play a vital role within tech firms. September has started with some navel-gazing in Silicon Valley as tech operators have been forced to confront an awkward question: are they running their companies the right way? There are a few good reasons this question has surfaced. For one, industry veteran Paul Graham — a cofounder of startup accelerator Y Combinator — published an essay titled "Founder Mode" at the start of the month that either resonated or struck a nerve with leaders. For the uninitiated, Graham has established a reputation in tech circles as a shrewd and erudite thinker. Over the past two decades, he's regularly weighed in on topics that both would-be entrepreneurs and more established leaders often fret over. Essays on generating "superlinear returns" and becoming "ramen profitable" have found viral acclaim among startup founders. So, too, have broader ruminations on being stubborn, the art market, and having kids. Famously, Graham was also an early mentor to Sam Altman. In his latest essay, Graham argues that there are two ways of operating a growing company — "founder mode and manager mode" — with those falling into the latter category at risk of seeing their company being driven into the ground. His rationale is pretty straightforward. Manager mode, he claims, involves a more hands-off approach to operations by delegating tasks to direct reports who are left to figure out details alone. Founder mode, he says, is about doing the exact opposite. Airbnb's cofounder and CEO Brian Chesky , the inspiration behind Graham's essay, sees leaders like Steve Jobs, Elon Musk, Jony Ive, and Hiroki Asai, his global head of marketing, as exemplars of founder mode. Jony Ive and Hiroki Asia from Apple inspired me to adopt founder mode Steve Jobs, Walt Disney, and Elon Musk embody many of the principles — Brian Chesky (@bchesky) September 4, 2024 A slowdown in capital flowing into tech businesses has made leaders more sensitive to Graham's question. Economic uncertainty has pushed them to think hard about their operations. But as a fierce debate has raged through social media in recent days, it's become clear that the tech world is split on what, exactly, is the best way to run a tech company. Founder mode versus manager mode Filip Dames is one tech figure who has found plenty that resonates with him in the founder mode philosophy. Related stories As a founding partner at investment firm Cherry Ventures and part of the founding team of online retail firm Zalando, Dames has seen "efficiency go out the window" for startup leaders who bring in, say, a "super senior sales guy" to solve problems as they grow in size. "They will never be as dedicated, they will never have as much skin in the game," Dames told Business Insider. "For them it's a job, and for you as a founder, it's basically your life." The idea gets to the heart of what the pro-founder mode camp prizes. In a podcast , Airbnb's Chesky argued that founders differ from managers by being the "biological parent" of the company they oversee. "You can love something, but when you're the biological parent of something, like, it came from you, it is you, there's a deep passion and love," he said. Of course, tech leaders do become encumbered with a growing list of responsibilities as their companies grow. Big Tech firms like Meta and Google went on a huge hiring binge during the pandemic to meet the growing demand for digital services, but they have since laid off layers of middle managers. For Dames, growth doesn't necessarily mean companies and founders must switch to manager mode. In his view, many large companies where the CEO is the founder "manage to run things with the founder DNA" by ensuring the full organization works with the same clear "values" in mind. "I think eventually as the company grows the only way to do it is through values," he said. A value-led approach has been key for tech founders who have managed to maintain success at their companies years after they raised their initial round of seed money. Jeff Bezos, for instance, has famously retained Amazon's "Day 1" culture, first established in 1997. Others see a risk in sticking to a single operating mode. According to Hussein Kanji, a founder and partner at venture capital firm Hoxton Ventures, it's easy to end up down the wrong track "if you live just in one mode." "People love making things black and white when the world runs in a lot of different shades of truth," he said. "People have lost their ability to engage with seemingly contradictory ideas at the same time." In his view, the best leaders are the ones who "know when it's time to be binary." It's a view that tallies with Dames, though he sees founder mode leaders having more of an edge during times that call for a shift in approach. "If you have more of the manager mindset and you're used to just calm waters, that makes things really difficult if you're in a fast-change environment and you need adaptability," he said. "The reality just changes." That said, some of the most successful tech companies right now are overseen by leaders who weren't their founders. Satya Nadella at Microsoft is one such leader, as is Dara Khosrowshahi at Uber. It is unclear how Silicon Valley will resolve this debate. In an  X post  on Tuesday, venture capitalist Chamath Palihapitiya weighed in by dismissing Graham's categories and suggesting instead that there is "first principles management and stupid management." "When your company isn't working, the only solution is to take the time, as laborious as it sounds, to break your business down to its core essentials and rebuild it from the ground up with zero nostalgia or loyalty to people or technology," he wrote. Expect divides on the leadership merits of founders and managers to continue for some time. Axel Springer, Insider Inc.'s parent company, is an investor in Airbnb. Watch: Microsoft CEO unravels ChatGPT, ethical AI, and going bust Main content Jay Stansfield’s sensational homecoming doesn't hide another Birmingham City gaffe Birmingham City defeated Wigan Athletic 2-1 thanks to goals from Alfie May and Scott Wright as Blues continued their bright start to the season 08:00, 1 SEP 2024 Updated 10:39, 1 SEP 2024 Never miss breaking news by signing up to our free email updates We have more newsletters Scott Wright announced himself to his new public by ramming home a debut goal to give Birmingham City their first home win under new manager Chris Davies. The 27-year-old, a deadline day signing from Rangers, produced an emphatic finish to seal a 2-1 victory that had at times been very much up for debate. Blues went in front through the clinical Alfie May, were pegged back by Thelo Aasgaard – more of which later – before Wright crashed home the winner. The result lifts Blues to third in the embryonic table, not that it means much at this stage, other than the fact their results have been where they need to be if Championship status is to be regained at the first time of asking. They have now won three of their first four games and are level with Stockport and Wrexham on ten points. But at this stage of the season it’s as much about performances as results – and here’s what stood out on an enjoyable afternoon at St Andrew’s. READ MORE: Chris Davies issues concerning Ethan Laird fitness update as injuries start to bite Birmingham City READ MORE: Chris Davies drops Jay Stansfield debut hint after deadline day transfer blockbuster Avoidable mistake Let’s not lose sight of the main thing, Saturday was another good day for Birmingham City. Tony Mowbray returned to the ground for the first time since being forced to take a leave of absence, nothing is more important than someone’s health. Blues paraded huge-money signing Jay Stansfield before kick-off and more than 27,000 watched Chris Davies' side secure a win with an injury time goal from a deadline days signing in front of the Tilton. Saturdays don’t get much better than that. But that’s not to say the afternoon couldn’t have been even better. Blues started fast in the first minute, got sucked into a bit of to and fro, then hit their stride after May gave them the lead. However, they were flat for 25 minutes of the second half, Shaun Maloney’s half-time decision to change Dion Rankine from the left to the right wing and replace James Carragher with Steven Sessegnon paid real dividends and the visitors created several chances. They deserved to equalise but perhaps not in the manner they did as Bailey Peacock-Farrell allowed a pretty tame effort from Aasgaard to slither through his grasp. It was the second time in two games the goalkeeper had gifted a goal to the opposition. Chris Davies excused the first one, away to Leyton Orient when he was caught in possession trying to acquiesce with his manager’s demands and play out from the back. He insisted he’d never criticise a player for trying to do the ‘right thing’. However, this was just a plain gaffe and – as we’ve said let’s not lose sight of the main thing – which for a goalkeeper is keeping the ball out of the net. Peacock-Farrell can't afford many of these Blues won’t always be able to manufacture a late winner and Davies does have a very, very credible Plan B with Ryan Allsop sitting on the bench. Sky has slashed the price of its Sky Sports, Sky Stream, Sky TV and Netflix bundle in an unbeatable new deal that saves £216 and includes 1,400 live matches across the Premier League, EFL and more. With Ultra HD included at no extra cost, football fans can enjoy the 2024/25 season with crystal clear picture quality. Back for good The feeling going into the game was one of excitement. Blues played their deadline day to perfection, indeed their entire transfer window looks on first impressions to have been very, very successful. Amazing how much more straightforward it is when you’ve got engaged owners willing to spend money. Never was that more evident than at 11pm on Friday night when the rumours came to fruition and Blues confirmed Jay Stansfield had returned to the club permanently, on a seven-year contact no less. How much did he cost? Honestly I don’t know. Fulham seemed to have been briefing that they’d got £15million plus £5m in add-ons and a 20 per cent sell-on. Those figures have been denied in conversations at this end – but those conversations never conclude in a different figure, nor indeed any figure at all. Blues stance seems to be: ‘That’s wrong but we’re not telling you what’s right’. Anyway, the maxim says you should never fall in love with a loan player, unless of course they fall in love with you too and Stansfield seems to have done just that. Davies suggested afterwards he had the pick of the Championship but it was his relationship with the club and their supporters that meant it was effectively a one-horse race. The 21-year-old was introduced to the crowd to a fanfare of ‘Stanno’ and flame-throwers as St Andrew’s rose in appreciation. Blues have a quartet of strikers that would be the envy of most Championship teams. May is so much more than an arch-poacher, Lyndon Dykes more than a target man, Lukas Jutkiewicz is probably does what it says on the tin but Stansfield offers real tactical flexibility. It’s easy to see him coming off the left of a 4-2-3-1 or 4-3-3, running behind, going round the back or even being deployed as a No. 10. The options are as mind-boggling as the fee, whatever that was. Bench bounce This was the third time in four League One matches that Blues substitutes have provided either a goal or an assist and with each occasion Davies’ assertion that players are either starters or finishers, rather than first XI and subs, looks more than mere sugar-coating. Indeed the manager reiterated afterwards that Blues are designed to be strong late in games, the starters tenderising the opposition by making them cover huge distances before fatigue sets in and fresh replacements come on to exploit the space that has emerged. Davies effectively doubled down on that claiming that Wigan were not unlucky to be reduced to ten men when they ran out of substitutes and couldn’t replace the injured Steven Sessegnon, but that they had been played into that position by Blues. Sometimes though it’s just a good old tactical switch that pays dividends and that was certainly how it felt here. May wasn’t having too much joy dropping off to link play that would eventually find him in the box. By contrast Dykes gave the team a focal point, someone to tie up the Wigan centre backs and stop them shadowing May wherever he went. Dykes was only on the pitch for 17 minutes plus added time and he still won more headers than everyone bar Krystian Bielik. It was his presence that created confusion and the string of corners with which Blues eventually won the game. Similarly Marc Leonard, who was superb in midweek against Fulham, came on after an hour and started to dictate proceedings. Remarkably he made 38 passes and completed every single one of them. Taylor Gardner-Hickman made 39 in twice as long with a completion ratio of 80 per cent. That’s not to say Leonard should start ahead of TGH in every game, more than the more physically powerful TGH is better suited to certain situations and the neat orchestrator Leonard others. Oh, then there’s Japan international Tomoki Iwata to throw into the equation. What is Blues' best XI? Have your say here Tony Mowbray Birmingham City FC Wigan Athletic FC Chris Davies (football coach) Jay Stansfield Bailey Peacock-Farrell Most Recent Share full article Advertisement Supported by Guest Essay Don’t Flip Out Over Election Forecasts By Kristen Soltis Anderson Ms. Anderson, a contributing Opinion writer, is a Republican pollster and a moderator of Opinion’s series of focus groups. We are now past Labor Day and in the homestretch of the 2024 campaign, and a lot of people are asking me and others in political polling and media: Who’s going to win in November ? Is the race Donald Trump’s to lose ? Can Kamala Harris turn her momentum into victory ? With people craving this peek into the future, the spotlight is intensifying on a part of my industry that isn’t especially well understood: election forecasters and their predictive models. This work is somewhat different from the polls that we all know so well, and I want to lay out what matters more about election forecasting, some of the reasons their predictive models can yield such differences (like predicting better chances for Mr. Trump in some models and better chances for Ms. Harris in others) and what I think people should keep in mind about forecasting and models so they don’t drive themselves crazy trying to game out the future over the next nine weeks. First, the difference between polling and forecasting (and predictive models) boils down to this: Polls give you a snapshot of voter opinion at a particular moment. By contrast, election forecasters try to look ahead and assess the likelihood of a particular outcome. Forecasters draw on those polls as they build a predictive model, into which they continually feed more polls and make adjustments (more on that below) to compute the chances of a given candidate winning. So while a poll might say that Ms. Harris is ahead of Mr. Trump by two percentage points in a given state — e.g., 49 percent to 47 percent — a predictive model might say that she won the presidency in 53 out of every 100 times that the model was run. Some forecasters’ models think Mr. Trump is favored slightly, some think Ms. Harris is favored slightly, and some think of the current race as a true coin flip for either candidate. (On election night, my Times colleague Nate Cohn gets into the short-term forecasting game with the Needle .) Just as I find polling to be often misunderstood, election forecasting is even more complicated, making it even more likely that the results of a forecast will be badly misinterpreted . There are considerable debates about what election forecasters should take into account. Think of an election model like a recipe for chocolate chip cookies. The goal is the same: produce the most accurate forecast of how an election will go (or produce the best chocolate chip cookie). But how you get there can vary significantly; New York Times Cooking has an editors’ collection of 16 chocolate chip cookie recipes, some requiring sea salt and one with coconut sugar . In election forecasts, there’s the main ingredient, of course: polls. Some forecasters believe that an election model should be driven entirely by the results of public opinion polls, arguing that such polls are the only real window into how voters might behave and votes are the only metric that matters in the end. Some models might give more weight to polls with a track record of accuracy or polls conducted more recently. For instance, the Quinnipiac poll that my husband took last week has more weight in Nate Silver’s model than this more dated poll from Morning Consult but less weight than this fresh poll from Suffolk University. We are having trouble retrieving the article content. Please enable JavaScript in your browser settings. Thank you for your patience while we verify access. If you are in Reader mode please exit and  log into  your Times account, or  subscribe  for all of The Times. Thank you for your patience while we verify access. Already a subscriber?  Log in . Want all of The Times?  Subscribe . 238 COMMENTS Essay on Mediation Mediation Between Mediation And Mediation Essay. Mediation refers to a form of alternative dispute resolution (ADR) in which the parties in a dispute meet with a neutral third-party in an effort to settle a case or reach an agreement over a dispute. The parties must recognize that the mediator is neutral and not on either parties side. Resolving conflict outside the courtroom What if there was a way to settle disputes faster, confidentially, for less money, and with the potential to better preserve relationships between the parties? Enter mediation, a form of alternative dispute resolution where participants in a conflict sit down — with a third-party intermediary — and hash out possible solutions. The Mediation Process and Dispute Resolution What does improv tell us about the mediation process and alternative dispute resolution (ADR) in general? Keep reading to find out. Mediation Free Essay Examples And Topic Ideas 9 essay samples found. Mediation is a conflict-resolution process in which a neutral third party assists disputing parties in finding a mutually satisfactory solution. Essays on mediation might explore various mediation techniques, the roles and skills of a mediator, or the advantages and limitations of mediation in resolving disputes. Mediation Mediation is a process in which a third-party neutral assists in resolving a dispute between two or more other parties. It is a non-adversarial approach to conflict resolution. The role of the mediator is to facilitate communication between the parties, assist them in focusing on the real issues of the dispute, and generate options that meet ... Mediation: The Six Stages Stages of Mediation. Most mediations proceed as follows: Stage 1: Mediator's opening statement. After the disputants are seated at a table, the mediator introduces everyone, explains the goals and rules of the mediation, and encourages each side to work cooperatively toward a settlement. Stage 2: Disputants' opening statements. Essays on Mediation : Dealing with Disputes in the 21st Century Essays on Mediation. : Ian Macduff. Kluwer Law International B.V., Sep 16, 2016 - Law - 314 pages. Across a range of jurisdictions, in differing legal systems, mediation is achieving evergreater institutional and statutory force, and what not long ago was a marginal technique for dispute resolution is becoming mainstream and orthodox. PDF Essays on Mediation Formerly Associate Professor & Director of the Dispute Resolution Initiative, School of Law, Singapore Management University. He has been a practising mediator for over thirty years, in commercial, environmental, policy, intercultural, family, online mediation and other fields. Law Library While the advantages of mediation are generally well advertised, insights into how the process works can serve as an important element in its promotion. Theory and Practice of International Mediation This volume brings together some of the most significant papers on international conflict mediation by Professor Jacob Bercovitch, one of the leading scholars in the field. It has become common practice to note that mediation has been, and remains, one of the most important structures of dealing with and resolving social conflicts. Essay On Mediation The document discusses the benefits of mediation as an alternative dispute resolution mechanism compared to traditional litigation. It begins by outlining some of the drawbacks of traditional litigation approaches, including procedural delays, increasing caseloads, and lack of party control. It then defines mediation as a voluntary process ... Transformative Mediation By Brad Spangler October 2003 Updated in 2013 General Basis and Background of Transformative Mediation Additional insights into transformative mediation are offered by Beyond Intractability project participants. In their 2004 publication, The Promise of Mediation, Robert A. Baruch Bush and Joseph Folger explicitly outlined a framework for the practice of transformative mediation. Essays in Mediation and Arbitration PDF | On Jan 1, 2011, Roberto M. Rodriguez published Essays in Mediation and Arbitration | Find, read and cite all the research you need on ResearchGate Mediation: The Future of Dispute Resolution Realising the potential of mediation for speedy and cost-effective dispute resolution, an amendment to the Commercial Courts Act, 2015, was made in 2018, introducing Section 12-A, which mandatorily requires the parties to attempt to mediate their disputes before initiating judicial proceedings[7]. Essays on Mediation: Dealing with Disputes in the 21st Century Essays on Mediation explores the practical uses of mediation and contemplates the power of both the oldest and the newest form of dispute resolution. Across a range of jurisdictions, in differing legal systems, mediation is achieving ever greater institutional and statutory force, and what not long ago was a marginal technique for dispute resolution is now becoming mainstream and orthodox ... How to Manage Interorganizational Disputes over Mediation in Africa Mediation Disputes. Before looking at the possible ways of avoiding or managing interorgani-zational disputes in African mediation, it is necessary to first provide a sketch of the significant disputes that have occurred over the past fifteen years and to identify the main patterns among these cases. Zimbabwe. Mediation Essays: Examples, Topics, & Outlines View our collection of mediation essays. Find inspiration for topics, titles, outlines, & craft impactful mediation papers. Read our mediation papers today! Advantages And Disadvantages Of Mediation Over Litigation Law Essay Besides, mediation is also more cost saving than litigation. The charge for mediation service is lower as the time consumed for the settlement of dispute is shorter. The time-dragging trial in an ordinary court consumed a lot of lawyer charge. Moreover, some of the mediation services provided are free of charge, particularly those provided by ... Mediation Process from the Perspective of a Mediation Practitioner This essay examines the mediation process from the perspective of a mediation practitioner. It considers the approaches to mediation, advantages and disadvantages and the various stages involved in the process. It describes how a mediation process was dealt with in a private inter-company dispute the author is familiar with. Advantages of Mediation Advantages of Mediation. Mediation is more time saving than litigation. It is a quick process involves the coming into a mutually acceptable agreement to settle the dispute by both sides of the parties. The mediator, who act as the middleman of the disputed parties helps the parties to reflect the benefit concerned by the parties to each other ... Reflective Essay On Mediation Reflective Essay On Mediation. 1566 Words7 Pages. Mediation is a form of alternative dispute resolution in which a neutral third party helps disputants resolve a conflict (Bishop, p. 64). The employee/supervisor mediation was my first experience role-playing as a mediator in a dispute. I enjoyed the experience and recognized how significant the ... Essay Competition on Mediation by YCM This essay competition is your gateway to share your unique perspectives on Mediation with YCM. Theme. The topics for Students are: Topic 1: Where have you seen mediation in movies, or TV series, and analyze the principles. Topic 2: How you would see Mediation as a tool to resolve conflicts in everyday life; The topics for Professionals are: Mediation Essay Mediation recently has become more common as one of dispute resolution process especially for disputes which have relations to divorce matter, child custody or even for child visitation especially for its privacy and confidentiality. Mediation is an extension of the negotiation process and shares some similarity with conciliation process. Coming to Home to Israel to Learn That 6 Hostages Were Dead In a personal essay, Danya Kaufmann writes about the grief she feels over the six hostages who were killed and staying in Israel even as she questions that decision. 'Founder Mode' Is Dividing Silicon Valley Silicon Valley is split over the best way to run a company. An essay called "Founder Mode," inspired by Airbnb's Brian Chesky, says leaders need to be more hands-on. While many leaders agree, some ... Edison NJ sued by landlords over new housing ordinance Allan Zhang, the attorney representing the township, has called the lawsuit "frivolous" in court papers. ... Edison sued by landlords of more than 8,000 apartments over town's new housing ordinance. Bhim Kohli death: Children held over Franklin Park attack Nearby residents expressed their shock at hearing the news. Julie March, 38, said: "It's tragic; we can't even comprehend how it happened. "And it's just on our doorstep." Jay Stansfield's sensational homecoming doesn't hide another Birmingham Birmingham City defeated Wigan Athletic 2-1 thanks to goals from Alfie May and Scott Wright as Blues continued their bright start to the season Don't Flip Out Over Election Forecasts Guest Essay. Don't Flip Out Over Election Forecasts. Sept. 3, 2024. Credit... Illustration by The New York Times. Photograph by Getty Images. Share full article. 376. By Kristen Soltis Anderson. assignment essay homework paper phd report speech thesis