The importance of being informed

Mediation skills are urgently required in a bid towards efficient, fair and cost-effective ways of reaching agreements on a medley of complex issues facing business enterprises. Audrienne Spiteri-Gonzi, a certified mediator, shares some in-depth information about mediation techniques with Marika Azzopardi

How did it come about that you found yourself involved in the mediation field?
Until I went to live in the USA in 1998 I had never heard much of Mediation and neither of the concept Alternative Dispute Resolution. As an undergraduate student at the University of Malta I was particularly interested in issues related to Conflict Management and Dispute Resolution. In fact, after I graduated as a B.Ed [Hons] I was less inclined to work as an educator and much more inclined to further my studies in those areas related to the management of disputes and the skills required to communicate effectively. This might sound funny, but as a student as well as in a number of personal situations in life, friends and colleagues of mine have often remarked, that while I tend to be blessed with a number of personal attributes I certainly needed to work harder on the way I communicate my views in order to ensure that the message delivered is reached just as positively on the other end. Unfortunately but true, very few of us are born Negotiators or Mediators, in most cases these are qualities we need to learn about and master. Life is not just about being right but equally as much about being perceived as right. The way we come across and the way we negotiate has a lot to do with achieving results. This must have been the fundamental reason why I came to be involved in the Negotiations and Conflict Management field in the first place; I sincerely believed it would make me a better person. I think I attribute most of my determination to pursue this aspect of professional development to a personal friend of mine, who I consider to be a true Negotiator and who has always been a great source of inspiration in my life.

When my family and I moved to the United States, I enrolled in a post-graduate course at the University of Baltimore and studied Negotiations and Conflict Management. I later joined the Centre for International Development and Conflict Management [CIDCM] where I was directly involved as project manager in the development of a Conflict Resolution project in South East Asia. This led me to take a closer interest in the mediation process as a means of assisting parties negotiate their disputes effectively and reach lasting agreements. I therefore followed the necessary training to qualify as a mediator and am certified by the US Maryland Circuit Court to practice as a Mediator. The United States is a place of great opportunity and while living among such diverse cultures and opposed views can be challenging and often painstaking, being in the hub of such activity, not only enhances one’s skills as a mediator but also opens doors of opportunities. Such was my working experience with Professor Johan Galtung, founder and director of TRANSCEND, a world-wide renowned organisation in the field of Conflict Resolution and with the ADR Commission for the advancement of dispute resolution in Maryland.

What does the concept of mediation encapsulate?
Mediation can be described as the intervention into a dispute or negotiation by an acceptable third party who has no decision-making authority and is impartial to the issues being discussed. The mediation process begins as the parties actively and openly recognise the need for consensus or joint decision-making to resolve their differences. Mediation involves a relatively formal structure or approach. The mediator assists contending parties to voluntarily reach a mutually acceptable settlement of the issues in dispute. As the parties develop further trust by means of the way the mediation process is structured e.g. The ground rules established by the mediator that govern the interactive process, the prohibition against interruption and so on, parties feel they will be treated fairly and collaborate more. The mediator, the mediation process, should be able to move parties from positional bargaining toward interest-based negotiation, which has the potential for more integrative and mutually beneficial solutions, and gradually lead them to an agreement.

What about Conciliation?
There is often misunderstanding about the field of Alternative Dispute Resolution in general but particularly about the role of Conciliation and Mediation. Conciliation is one of the most misunderstood concepts in the field. Typically, negotiations in ADR start with a conciliation process. Conciliation is an approach whereby an intervenor works with parties, individually or together and attempts to correct misperceptions, reduce unreasonable fears, and improve communication to an extent that will permit face-to-face discussion and ultimately a voluntary settlement. Data collection and analysis is often an essential component of the conciliation process because it is diagnostic in nature. A conciliation process generally occurs when a disputant perceives that [1] the other party’s definition of the issues completely excludes his or her interests [2] parties have unreasonable perceptions about each other [3] parties are unable to jointly make decisions because of negative psychological dynamics, strong emotions, lack of trust and poor communication. The conciliation process makes use of informal and non-direct approaches to building trust and educating parties. The approach does not involve the parties in direct acts of co-operation or negotiation. In the early phases of conciliation parties often take a positional approach to issues in dispute, often viewing issues in a win-lose terms. The intervenor will need to move them to interest-based bargaining by re-framing and legitimating their concerns and interests. The conciliation process, often an integral part of the mediation process, is the initial phase in a conflict resolution process, and offers an opportunity to parties to think objectively about the conflict, distance themselves from hardened positions in order to be able to associate and communicate without being expected to negotiate.

Arbitration is often mentioned in connection with the above terms, where does the distinction between these terms lie?
Arbitration is another important dispute resolution mechanism. Arbitration and mediation are not in conflict with each other. Neither is the process of mediation or arbitration in conflict with the legal system. ADR mechanisms all complement each other and work together to encourage out of court settlement among parties in conflict or disagreement. It is however crucial to distinguish between Mediation and Arbitration. They are both referred to as alternative dispute resolution mechanisms as the both employ neutrals to resolve disputes. However, the function of the neutral in each method is quite different. In mediation the neutral attempts to facilitate a voluntary agreement between the parties. The mediator may improve communication, encourage parties to make counterproposals, and offer suggestions for collaboration. However in mediation if the parties cannot agree the dispute remains unresolved as the mediator cannot enforce a binding decision. In arbitration on the other hand, the parties have empowered the neutral to make a binding decision. It is a process in which parties in a dispute present their views to a knowledgeable person, an arbitrator, who in turn decides and grants an award which is equivalent to a court judgement. Arbitration serves the economic interest of each participant as it pays both parties to have a dispute resolved without delays and in the most cost-effective manner.

How is Mediation and ADR being applied today in today’s universal business environment?
A 1997 PriceWaterhouse survey had cited, ‘Nearly 25 per cent of US corporations have established in-house grievance procedures for non-union employment disputes. A majority of corporations who use alternative dispute resolution believe it provides ‘more satisfactory settlements’ than litigation, and it preserves good relationships.’

Today, businesses, agencies, institutions and organisations face a daunting array of challenges both internally and externally. When organisations do not have appropriate procedures, or key employees lack skills, decision-making is bogged down and conflict escalates. Often leading to loss of time and energy, reduced productivity, poor morale, delays and frustration. Conflict management skills, Improved collaborative decision-making processes, leadership and team building, can minimise the costs of conflict.

Today, in our increasingly global economy, nearly two-thirds of Fortune 500 companies are including dispute resolution clauses in their contractual agreements. Moreover, small and medium sized enterprises have realised the high costs of conflict and the potential of preserving relationships. Why? The reasons are both compelling and straightforward. In choosing trading partners, corporations seek t operate in the context of a familiar, reliable and enforceable contract dispute resolution system. They have learned that when entering into agreements with their local counterparts as well as with government or private entities, incorporating ADR clauses translates into good risk management. In doing so, they avoid the possible delays and costs of litigation in the courts.

Conflict Management, Negotiation and Mediation Education and Training Responding to this growing need to effectively resolve conflict, CONCORDIA Centre for Conciliation and Mediation Services, a not-for-profit Foundation launched in January 2002 was set up to offer training opportunities to assist individuals and organisations transform conflict into opportunities for constructive dialogue, mutual gains and positive resolution. Leaders, managers and employees need efficient, fair and cost-effective ways to reach agreements on complex issues and to resolve organisational and interpersonal disputes. Training to improve conflict management and dispute resolution skills help organisations enhance systems for making decisions and resolving disputes between employees, among organisational units, with customers, contractors or communities. When organisations do not have appropriate conflict management and dispute resolution procedures or if employees lack appropriate skills, decision-making is stalled, conflict escalates and can lead to:

• Loss of time and energy
• Poor morale and reduced productivity
• Unnecessary legal fees

How can mediation be of benefit in community and family disputes?
In most interpersonal disputes the primary concern is to preserve relationships. Confrontation escalates conflict and is adversarial in nature and for this reason falls short of satisfying individual basic needs and expectations. By addressing the underlying cause of conflict and by means of an interest needs-based approach parties improve communication and strengthen relationships. Mediation offers an alternative route to resolving interpersonal disputes in any social context. In family disputes, mediation can assist parties resolve their differences without recourse to litigation.

What range of business enterprises and social and community organisations do you envisage as predominately interested in mediation?
Mediation is for people from all professional and work backgrounds – lawyers, therapists, counsellors, human resource managers, customer care personnel, union leaders, government officials, middle and upper management personnel and senior executives all stand to benefit from mediation.

Fostering a culture of mediation is one of CONCORDIA’s foremost objectives in all our activities. In doing so, we are seeking the support of all the community, of all those who are active in the ADR field, and of all those who believe that this approach to disputes can be of relevance to them, to their lives and to their business relations.

A Mediation Skills Training Seminar is being held on 8 April 2002 at Le Meridien Phoenicia, Floriana. For further details contact Concordia Centre for Conciliation & Mediation Services,
Tel: 21242713, Fax:21245397,
email: [email protected]