A Study On The Techniques Of International Commerical Mediation For Mediators

Disputes arise with the formation of human society. As an effective solution to disputes, mediation has a long history behind it. It differs from litigation and arbitration in that it is a voluntary dispute resolution based on party autonomy. The party-oriented and non-restrictive nature of international commercial mediation requires that the mediator not only comply with the basic mediation rules but also urge the parties to reach a voluntary settlement agreement through his own effective mediation skills and techniques. A mediator's role is different from that of the judges or that of the arbitrators who forces out binding judgments or arbitral awards for the parties involved.Many factors may exert influence on the international commercial mediation process, including the party's cultural differences, psychological and emotional changes, etc. Mediators may also face the challenges brought forth by some basic mediation rules like confidentiality, neutrality and fairness, etc. If the mediators fail to handle these problems properly, the parties may quit from the mediation process at any time without any results to be achieved. Generally speaking, during the process of international commercial mediation, mediators need to address the following issues in order to urge a settlement agreement between the parties:First, to deal with the cultural differences and try to overcome the communication barrier between the two parties caused by those differences. Second, to carefully observe the psychological changes of the parties and help them to formulate positive psychology and emotions. Third, to promote good-faith participation of the mediation process for the sake of effective communication among the parties. Fourth, to creatively find a solution which maximizes the best interests of both parties. Fifth, to properly handle the problem of neutrality, fairness and confidentiality and to enhance the trust relationship between the parties in order to make sure the mediation process to be continued until a satisfying result is achieved. In addition, all these tasks mainly depend on the mediator's communication skills, to be more specific, their language skills and listening skills.Chapter I-Techniques of Dealing with Cultural Differences in International Commercial Mediation for Mediators.The discrepancies between collectivism and individualism and between the high and low relevant context paradigms are the basic patterns of cultural difference. In the process of the international commercial mediation, the deeply rooted cultural differences of the parties may affect their attitudes towards the dispute, their value orientations, thought patterns, needs for "face", ways of needs expression and their communication patterns, etc, which is likely to impede the continuation of the process. At this time, the mediators need to meet the following requirements:to go beyond their own culture frontier and maintain cultural neutrality when mediating cross-culturally; to understand the cultural differences between the parties beforehand so as to avert further conflicts; to find the common ground of different cultures in order to promote cultural communication; to make appropriate arrangements about the procedure or environment of mediation. As a mediator, one must try his best to promote the understanding, respect and tolerance among the parties and help them to reach a mutual settlement agreement.Chapter II-Techniques of Controlling the Mediation Psychology and Emotions for Mediators.In the process of international commercial mediation, how the parties would behave and act is under the guidance of their mediation psychology and willingness. If any thing that happened during the process causes antipathy against mediation for the parties, it will be very difficult for the continuation of the mediation. The parties' psychology in this process reflects the characteristics of interactivity and susceptibility. Consequently, some complex psychological tendencies such as over-confidence or over-doubt could appear. The parties may also bear all kinds of psychological expectations and if any of them is unfulfilled through the mediation, they may lose their confidence about mediation and quit from the mediation process. Some negative feelings and emotions of the parties may impede the continuation of the mediation process. Based on the reasons above, mediators should properly handle the parties' psychological and emotional changes so as to successfully accomplish their tasks.Chapterâ…¢-Mediation Deception and Techniques of Encouraging Good-faith Participation for Mediators.Based on human's egoism nature, it is common for the parties to utilize deceptive skills during the mediation process. The deceptive skills may include:not providing the relevant truth, purposefully hiding one's bottom-line, making over-statements, and hiding one's mistakes and other purposes, etc. Though some of those deceptive skills are understandable and tolerable, good-faith participation of the parties is still the basis of the mediation system. Without any faithful participation by the parties, mediation is just an empty and worthless shell. Thus we should make a more scientific definition about "Good-Faith Participation". Faith regularities should be kept in accordance with the parties' autonomy, confidentiality and some other basic values. Instead of making compulsory requirements, mediators should suggest, persuade and guide the parties to faithfully participate in the mediation process. This would be a great challenge for the mediation skills of the mediators, especially their persuasion techniques.Chapter IV-Communication Skills for MediatorsCompared to other dispute resolution methods, mediation depends more on the mediators' communication skills. To achieve effective communication, a mediator must be equipped with two basic skills, that is, stating and listening. Besides, good language skills are also required in order to make appropriate statements in mediation. The mediation language should be kept neutral, concise, cautious and understandable. It should also show great respect for the parties involved. Mediators can communicate with the parties through verbal and non-verbal language. As for listening skill, it requires that the mediators pay attention to what the parties have said and capture the meaning lying behind the words in order to make on-time and proper response. Only in this way can mediators encourage the parties to reveal more useful information, relieve their emotional tension and build up confidence and respect. In a word, the language skill and listening skill are two crucial skills for a successful mediator.Chapterâ…¤-Techniques for Promoting Settlement Agreement for MediatorsDifferent mediators may adopt different types of mediation techniques. There are three basic mediation techniques:wining the parties' trust, looking for creative solutions, and maintaining patience and perseverance. To promote further mutual agreement, more specific mediation techniques can be employed by the mediators, such as: to encourage the parties to tell their own stories, to describe the disputes, to analyze the root cause and characteristics of the dispute, to analyze the interest of the parties, to rebuild the trusting relationship among the parties, to find out the communication barrier, to analyze the negotiation style of the parties and to balance their power, etc. In addition to this, mediators should try their best to avert the negative influence coming from the parties involved, the representative lawyers and even mediators themselves.Chapterâ…¥-The Utilization of Some Main Mediation Rules for Mediators1) Confidentiality:Mediators should keep both the inside and the outside confidentiality. The maintenance of the inside confidentiality mainly depends on the mediators'skills of secret keeping and communication. In what way does a mediator convey the information he gets from one party in caucus mediation directly determines whether the mediation can be successful or not. If a mediator goes against the inside confidentiality rule and reveals the relevant information to the other party, his neutrality will be seriously questioned and doubted by the information-providers. This often results in the failure of mediation. However, there are certain exceptions of the confidentiality regularity for the sake of protection of the public interest or the interest of a third party. This can decrease the inherent negative effects of the mediation confidentiality.2) Neutrality:There exists a huge gap and sharp contrast between the theoretical advocacy and realistic lack of mediator neutrality. Due to the influence of many factors involved in the mediation practice, even though a mediator may possess firm neutrality belief, he may lose his ground consciously or sub-consciously during the whole process. Different mediators and parties have different understandings towards neutrality, which may cause unnecessary disputes and controversy in mediation practice. However, the basic definition of neutrality should include:First, the mediator shouldn't interfere into the dispute. Second, the mediator should maintain neutral on the issue of parties' interest. Third, there is no interest interrelation and involvement between the mediator and the parties outside the dispute. Fourth, the mediator keeps neutral towards the mediation results. To the mediators, neutrality is more a kind of technique than an attitude. Apart from the sense of neutrality bared in one's inner heart, neutrality also depends on the mediator's capability to handle the detailed problems in the mediation process, which in turn affects the parties' attitude towards the mediator's neutrality. The neutrality principle requires a lot about the mediator's communication skills.3) Fairness:the fairness of mediation includes three aspects:the substantive fairness, the procedural fairness and the psychological fairness. As for the substantive fairness, it requires the mediators to propose some solutions or possibilities which can protect the parties' best interest on one hand and to achieve the results which more or less live up to the parties' expectations on the other hand. Only under these circumstances can the parties feel the fairness and be willing to reach an agreement with each other. As for the procedural fairness, the best way to achieve fair results for mediators is to encourage the parties to actively participate in the mediation and to control the whole process instead of passively accepting the choices the mediators made for them. As for the psychological fairness, the parties'own sense of fairness is the crucial even ultimate measuring standard for the fairness of the mediation system. The fairness of mediation depends on each party's view and attitude towards it. A fair mediation should at least meet the following requirements:First, it must be considered to be fair by the parties involved. Second, it can promote the mutual understanding between them. Third, it can build up healthy relations. Fourth, it can save time or money for the parties.Finally, the article comes to a conclusion that the mediator should not only obey the mediation rules but also use his mediation techniques, so as to conquer the difficult problems in the mediation process.