留学生法庭调解过程分析论文 [2]
论文作者:英语论文论文属性:作业 Assignment登出时间:2014-10-11编辑:zcm84984点击率:12204
论文字数:3400论文编号:org201409281321534212语种:英语 English地区:澳大利亚价格:免费论文
关键词:调解过程Law Essay法律从业者公司内部争端
摘要:本文是一篇留学生法庭调解过程分析论文,本文以一个中介从业人员的角度来探讨调解的过程。它考虑了调解的方法,过程中的各个阶段的优缺点。它描述了一个中介过程是如何在作者所熟悉的一个私人的公司内部争端中被解决的。
ews. The first is the “satisfaction story” which says mediation is better than adversarial dispute resolution because it uses collaborative and integrative approaches to reach win-win outcome for the participants. The second view is the “social justice story” suggests participants can be organised around common interest to obtain social justice. The third “transformation story” argues participants problems and goals can be defined in their own terms. The final story is the “oppression story” suggests mediation is dangerous because of its informality allowing the stronger party to manipulate the weaker one. According to Folger and Bush the satisfaction story is the dominant one based on the notion that conflict is a problem that needs to be solved. In contrast transformative mediation encourages empowerment and recognition. Consequently mediators have to choose between transformative or problem solving approaches as they cannot be successfully combined.
The current problem-solving mediation model considers conflicts ‘neither good nor bad, but as situations of competing interests and needs among parties that are generally neither right nor wrong’ (Chupp, 1991). Which is best transformative or problems solving mediation? In Mediation Dangerously (Cloke, 2001) suggested ‘conflicts are not just to be solved, but to be learned from-when mediation becomes dangerous, is when mediation becomes truly enlightening and transformational’.
Different styles of mediation have emerged. These are generic (1970), settlement driven (1980), cognitive and systemic (1980), humanistic style (1990) and narrative (1990) (Boserup, 2003). Each varies to the degree that they focus on feelings, emotions, problems, needs and interests of the parties.
Advantages & Disadvantages of Mediation
We are aware that conflict is dangerous, but we expect mediation to be safe..recognise that in order to resolve our conflicts we have to move towards them which is inherently dangerous because it can cause them to escalate’(Cloke, 2001). In his book Mediating Dangerously, Kenneth Cloke argues that conflict is laden with information essential for growth, learning, intimacy and change. Honest communication poses risks with the inevitability of opening ‘Pandora’s box’. Conflict suppression (tolerance of evil and acceptance of injustice) and conflict settlement (suppressing and denying underlying causes) does not lead to conflict resolution which recognises the inevitability of conflict and its potential to generate a positive outcome.
Mediation, like most things that are good in the world, is not perfect. It has its risks and drawbacks which must be evaluated before embarking on a mediation process. Some would argue that its risks are small compared to its advantages. Others would adopt a different view ‘mediation's extreme malleability makes it an inherently flawed and dangerous forum for handling conflict’ (Folger, 1994).
Advantages offered by mediation are its speed, confidentiality, low cost, fairness, reduced stress, flexibility and success. The disadvantages are that of an imposed solution, non-binding, power imbalance, compromise and showing your hand. Proponents of ‘positional bargaining’ in negotiation and some legal advisors would see mediation as giving up your rights. Advocates of mediation would hold the view that the only discernible disadvantage of mediation is that it may prov
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