ADR Alternative Dispute Resolution Term Paper

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Alternative Dispute Resolution (ADR)

Many theorists, including Nadja Alexander and Marian Roberts, begin their discussions of mediation by noting that it is a fairly new phenomenon in the field of formal dispute resolution. Nevertheless, the paradigm has gained increasing popularity over the last decades, particularly where family and divorce disputes are concerned. Indeed, where young children are involved, couples often prefer to resolve the dispute privately via mediation than publicly in court. In this way, negotiations remain amicable, or can become so with the help of therapy. John Haynes, a mediation expert, identifies the purpose of mediation as finding a mutually acceptable solution for both or all the disputing parties (Haynes 1). In order to do this, he suggests the following steps in the process of mediation: Recognizing the problem; choosing the arena; selecting the mediator; gathering the data; defining the problem; developing options; redefining positions; bargaining; and drafting the agreement. Nadja Alexander's (10) identification of the issue is closely related to this: the purpose of the mediator is to identify the needs and interests of both parties, generate options to satisfy the needs of both, and to help both parties to create their own outcomes. In other words, both parties in dispute should be respected for their ability to find solutions on their own. The mediator should never make the decision for them, but rather lead them to a situation they can use to find an amicable solution.

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It should also be recognized that other professionals, besides the mediator, could be involved in the process. Disputes are generally highly emotional events, with feelings affecting the parties involved to varying degrees. A counselor with psychiatric expertise might therefore be needed in such a case, as suggested by Fisher, Ventura & Reed (11). A recent development in mediation however provides an alternative to this. Pruett and Johnston (Folber, Milne & Salem 92) suggest a combined model of therapy and mediation that could be used to reach a more integrated solution for the whole family.

Term Paper on ADR Alternative Dispute Resolution Assignment

When a resolution is reached, it is likely that the disputing parties would need the services of an impartial legal counselor, whose interest is in balance between the conflicting parties. The above are considerations that need to be taken into account in the case of dispute between Cherry and Giovani Pertucci. While Cherry's attitude indicates that she is ready for mediation, Giovani still has many emotional issues that need attention before he will be willing to compromise in order to resolve the situation.

The Situation

The first step in the mediation process is to assess the situation. The Pertucci situation, from Cherry's viewpoint, is that she has become increasingly lonely as Giovani's business became increasingly successful. He was frequently away from home, and she was left with her child and her home to care for on her own. To escape loneliness, she furthered her studies to become a solicitor and found a job at Channel 4. In contrast to her life thus far, this opened up a new and exciting world for Cherry. Her feelings of marital neglect led to an affair with a man at the office, which led to the breakdown of her relationship with Giovani. While Cherry does not desire a reconciliation, she does wish for her son's continued contact with his father. She wishes to reach an amicable solution with Giovani.

Giovani, being on the receiving end of the breakdown resulting from his wife's affair, feels more hostile regarding the events. He feels victimized and angry, and believes that the new partner has taken his family away from him. He also feels betrayed by his wife, for whom he had provided amply in terms of physical comfort and luxury. For these reasons he wants his wife to take as little as possible from the home they had built up together. He therefore wants to keep both his son and his house, with as little contact as possible with Cherry.

Clearly there is a rather serious conflict of interest involved. Giovani is allowing his hurt feelings to compromise his son's well-being. Indeed, he wants to remove the boy from his mother's care, keeping him in a home from which his father is frequently absent on assignments. In contrast to Cherry, Giovani appears unwilling to let Eduardo's mother visit the boy frequently if he were in the custody of his father. Giovani appears to be unable to deal with his emotions regarding the affair and pending divorce. His anger may be just a defense mechanism to mask the depression, fear and pain related to the breakdown of his relationship. He may need professional therapy for this before mediation can be seen as an option (Fisher, Ventura and Reed 11). In working with Giovani, the counselor needs to help him redefine his position from self- to mutual interest. His feelings regarding Cherry are so negative that he is currently overly focused upon his self-interest.

The most important issues of the case include the fair division of property and separate co-parenting, and the effective communication towards reaching these solutions. While Cherry appears willing to communicate with Giovani, she has found herself unable to penetrate his extreme hostility and abusive behavior.

Mediation Process and role of Mediator

Haynes (15) notes that the mediator has a very specific role in the mediation process. He needs to clarify this role to the disputants at the beginning of the sessions. According to the traditional mediation model, the mediator can only offer mediation services, and not therapeutic or legal counsel (Haynes 14). Indeed, if these are needed, the couple needs to be referred to the appropriate professionals. The mediator's task is only to identify those elements that aid the mediation process itself. As such, he is to avoid where possible elements such as emotive statements, social talk, and legal or therapy questions. Instead the focus is to be only on elements that relate directly to the dispute and its resolution, such as the dispute data, the couple's goals statements, and their bargaining behavior and strategies. This limits the current mediation possibilities for Cherry and Giovani, as the latter still appears to need considerable professional help in order to work through his emotional issues. Only Cherry has shown signs of being ready for mediation. However, her problems in communicating effectively with Giovani may also lead to therapy questions on her part.

In the case of divorce mediation, Haynes (27) acknowledges that complex emotional issues integrate with practical matters when attempting to resolve disputes. For effective mediation, both parties need to distance themselves from the emotions resulting from the past, and focus upon the future to find solutions for their practical concerns. Giovani is however unable to do so in his current situation and the traditional form of mediation cannot proceed. Indeed, the emotional aspects of the situation still very much dominate in Giovani's mind, and he is unable to communicate with Cherry in a cooperative way.

Integrated Resolution

To resolve this problem in a more integrated and targeted way, Pruett and Johnston (in Folber, Milne & Salem 92) suggest two models of mediation and therapy in combination, which could be useful in the Pertucci case, particularly as a young child involved. Indeed, such a combination lends itself particularly well to divorce disputes because of the emotional issues that are likely to be unresolved. While Cherry is worried about the welfare of her child, appearing to care for his well-being, Giovani's focus appears to be on himself and his own feelings. It appears that he wants to claim everything produced by the marriage for himself, regardless of whether this is best for Eduardo or not.

Because of Giovani's apparently unresolved issues, it is therefore suggested that either the mediator refers both Cherry and Giovani for joint and separate counseling, or that one of Pruett and Johnston's combined mediation and therapy models be used. Indeed, Pruett and Johnston suggest that mediation in its traditional form, divorced from therapeutic intervention, has been most effective with couples who both wish to reach amicable solutions that optimize the benefits for both parties. Specifically, according to the authors (Folber, Milne & Salem 92), such couples display four elements to indicate that they are ready for mediation: 1) they made progress with the emotional aspects of their situation, 2) the levels of anger between them are manageable, 3) a willingness to compromise, and 4) an absence of psychopathology or physical abuse. In the case of the Pertuccis, Cherry is displaying a more mature level of the elements mentioned above. She does not appear hostile towards her former partner, or to believe that he is unable to take a significant amount of responsibility for their child. Despite the fact that he was abusive towards her and her new partner, she does not appear to believe that he would level such abuse against Eduardo. She also does not appear unwilling to reach a compromise towards co-parenting with Giovani.

Giovani on the other hand has not dealt with his emotions effectively, as is… [END OF PREVIEW] . . . READ MORE

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