Influences that Create Obstacles

  • Mediation is best applicable in cases where concerned parties have similar goal or interest that can be handled in similar manner. In the case at hand, the investors, under hatred for con firm, aim is to realize part of the huge capital they had invested. Walters & Hoyle note, that with such rage, meditation is a good platform for accessing justice. The case at hand revolves around four main parties involved, and with different interest. The first and second foremost parties are the two investors who had pulled all their resources in the Ponzi scheme. The third party is the lawyers, while the last party is the fraud investment firm. The two investors, under the lawyers influence, are torn between the approaches to use to share the investment firm assets in order to recover the losses they made. Unfortunately, the investment firmєs resources are not enough to cater for neither the losses nor the litigation fee for handling the case. Therefore, the best approach for the parties involved is to engage in mediation, through a mediator. A mediator usually oversees the mediation process and acts as a neutral ground for aiding the parties to come to an agreement. In this case, as the party that acts as the mediator, I will have limited or no authoritative decision-making authority. The goal of mediation is coming to an agreement after looking into facts rising before or after the conflict so that justice is achieved. A mediation process can be approached from the level of fostering a lasting relationship and realizing settlements after end of a relationship. The case at hand requires an independent mediator, since the involved parties are not interested in fostering any relationship. As the independent mediator in this case, I can help the involved parties to develop voluntary and mutually acceptable resolutions. There are different styles that the mediators can utilize in order to aid the involved parties. The style to use can range from evaluative mediation, transformative mediation to facilitative mediation. For the case at hand, in relation to the stage of mediation, the best suited mediation style is evaluative mediation. After considering the analysis of the conflict, identification of parties interests and the need to facilitating parties generate proposals and developing realization plans. However, it is also important to look into the three mediation style pros and cons of handling the conflict, in order to understand the suitability of evaluative mediation.

    Evaluative mediation is arguably the best approach to deal with the conflict at hand as it offers guidance as to an appropriate settlement based on the applicable law, industry practice or other professional standards. Therefore, the mediation process in an evaluative style is basically reliant on existing guidelines that offer solutions to such similar case. The ability of the evaluative style to offer existing solution to such conflicts aids in efficient and reliable solution. This is after considering that the parties will be keen to follow the regulation that abides the existence and relationship of the parties involved in the case. For example, there are laws revolving around the mode of recovery of loses from a collapsed firm. On the same note, there are laws touching on how to deal with fraud investment companies. Under such provision, it will be very easy for the foremost parties, the two investors, to make a decision based on the existing formalities and regulations.

    As a mediator in the case, my responsibility is to help the parties in the conflict to realize the weaknesses and strong points of their cases, and accordingly hinting what a judge or jury would argue in such a case. Under the evaluative guidelines, the foremost consideration is the legal rights of each party, thus a fair approach. It is also worth noting that as the mediator, there is a platform for conducting shuttle diplomacy for each party. In such a scenario, it will be easy to convince each party on the expected costs versus gains. This is achieved after the mediator listens to both sides of the case and determines whether it is less cost effective to litigate or not. After considering the facts of the case, it is not cost effective to litigate as there is low balance of resources to fund the case. This is after considering that the fraud investment firm assets are not anywhere worth the invested sum by the investors. Another issue is that the conned investors are badly wounded economically and litigation would only pull them towards more harm.

    The most interesting benefit of evaluative mediation is that the parties can be assured of a fair solution if they do not come to an appropriate agreement. The only disadvantage of evaluative mediation is that the mediators view may at times differ with the logic of the judge, and at times, the parties in the conflict may feel cheated. This is after considering that the mediator does not order the way forward or obligate the parties to engage in his decision.

    Transformative Mediation

    Unlike the evaluative design, transformative mediation is based on empowering the conflict parties to realize self and other parties interests, needs and arguments. Spencer & Brogan are of the view that transformative mediation revolves around theoretical as well as practical party empowerment and recognition. Under such capabilities, the mediation style is most applicable when trying to retain the relationship between tough parties in a conflict. In the case at hand, the parties are trying to resolve how best to share the resources at hand and henceforth, live different lives with no relationship at all. The transformative mediation is focused on aiding the parties in the conflict to overcome the obstacles that may hinder their future relationship. Under such conditions, and as the mediator in the case, the duty would be to advise the conflicting parties on being empowered and ready for a transformational relationship. Unlike the evaluative style, transformational style is focused on realizing the other parties needs and values rather than rights and limitations.

    The transformational style is peace oriented and thus, not suitable for business cases, where there is a need to evaluate the right and limitations of a conflict party. In most cases, transformative style of mediation is often slow and comes up with minimal result. This is after considering that a transformational style gives the parties the power to decide if there is need for resolution. The case at hand is in urgent need for a fair resolution, and under the circumstances of the grieved parties, it is not easy to come to a resolution on their own. The transformative style of mediation would not offer excellent grounds for evading the high cost of litigation. This is after considering that the style is time consuming and dependent on clients who have basic knowledge of legal system. As expected, the clients in the case cannot agree on a single view, and therefore, there is the need for mediation. Therefore, the mediation outcome should not be reliant on the client for the outcome as it would result to similar consequences before the beginning of the mediation process.

    Facilitative mediation is almost similar to transformative mediation with only that facilitative style offers platform for the mediator to structure the process. Cooley identifies that in a facilitative style, the mediator assumes that the parties are intelligent, able to work together and able to understand their situation than the mediator therefore, the work of the mediator is only to facilitate the parties to define the problems at hand. The mediator often does this through asking questions that can facilitate the parties in respecting the positions of others. At most instances, through a facilitative style, the mediator will rarely contribute recommendations into the debate. On the same note, the mediator cannot approach the parties in different meetings or conduct shuttle diplomacy. All the facilitation by the mediator is conducted under the watch and ears of all the parties. Under the facilitative style, the mediator is not privileged to mention to the parties his exact thoughts and thus, limiting the capability of the mediator to offer reasonable approach to the conflict. Under such consideration, the style becomes exposed to the possibility of the most intelligent parties misusing or misleading the less intelligent parties. The mediator will consider it as the wish of both parties to decide on a course of action. Therefore, the facilitative style is not advisable, in case where the parties in the conflict have a different levels of understanding of their right and the other party rights.

    Both facilitative and transformative styles of mediation empower the parties in the conflict to make their own decision, without considering the weaker party. The styles are not suitable for a sharing of resources conflict, as they do not offer quite a standard and justifiable platform for sharing resources. The evaluative style of mediation is the most appropriate style to rely on when handling resources sharing conflict. Since the style is equipped with a platform of evaluating what the law says and predicting the judges verdict. The style is somehow similar to a court proceeding with the absence of the mediator's strong authority and the high court fees.

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