The mediation process is an interactive and structured process involving a third party to help the dispute parties in the conflict resolution process by using specialized communication and negotiation techniques. It is important for all parties involved in mediation to participate actively in the process of bringing peace. The process primarily focuses on the needs, rights, and interests of the individual parties ( Stitt, 2016 ). The process involves a wider variety of techniques that the mediator may use to constructively guide the process and help the parties find their optimal solution. The mediator facilitates the interaction between the parties and facilitates open communication between them to open up their minds concerning the dispute. Furthermore, mediation involves a five-step process. These include the convening stage, opening stage, communication stage, negotiation stage, and closing stage. The purpose of this paper is to analyze more extensively the negotiation process of a case involving an age discrimination suit by the plaintiff, Pat Thibideau, against his former employer Kane Robin.
The rivalry is between Pat Thibideau, a commission salesperson, and his former employer, Kane’s Restaurant Supply. After working for 25 years in the restaurant, Kane asked Thibideau to retire at 65 under its mandatory retirement policy. However, Mr. Thibideau, after consulting his attorney, realized that he was illegally forced to retire. He then went ahead to seek his job back from Mr. Kane, of which he was reinstated. However, Kane again terminated his job after alleging poor sales performance. On the other hand, Mr. Thibideau claimed that his sales performance was affected by the fact that Kane assigned him to a new sales territory and changed his commission structure. The mediation process started with a joint session involving Mr. Kane, Mr. Thibideau, and the mediator.
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Convening stage
In the first stage of the negotiation process, each party, including the mediator, must be aware of the existing conflict. Furthermore, the mediator must be aware of the history leading to the existence of the conflict. After which, they must also understand each party’s perception towards the conflict and mediation and their expectation towards the negotiation process ( Santiago-Rivas, 2015 ). The disputants are then brought together and convene at a table to discuss the beginning of the conflict. The stage’s main goal is to determine each party’s willingness to negotiate with the other party.
Moreover, before the beginning of any negotiation, the mediator, together with the parties, needs to decide when and where the meeting will take place to discuss the main problems and who are expected to attend the meeting. However, the mediation process of the controversy between Mr. Kane and Mr. Thibideau already starts with John and Dahlia at the meeting without first discussing the issue with the two conflicting parties. At this stage, the mediator, attorney Rudofsky did not ensure that the two parties know the situation before starting the process to clarify their position.
Generally, the attorney did not take care of the initial points of consideration before starting the process. Specifically, she did not consider each party’s decision to participate in the negotiation, what they need to know, and did not organize her information well before the opening stage. The parties came together to talk about the negotiation. As a result, in the conversation in the first negotiation meeting, she relays information that may suggest that she had taken sides to support Mr. Thibideau when she talks of the death of the Salesman while describing Mr. Thibideaus’s situation after Mr. Kane laid him off from the job. The mediator was supposed to talk with the two rival parties separately concerning the need for mediation before convening a meeting where they come together to discuss the situation.
Opening stage
The opening stage’s main goal is to determine each party’s willingness to negotiate with the other party. All individuals involved in the mediation process get together for the first time during this stage. The opening stage’s main objective is to enforce safety and hope to both parties involved in the conflict. After inviting all of the participants, the mediator lets them discuss their perspectives, whereby the lawyers describe the facts and laws. In contrast, the principal parties describe how they have been affected by the conflict. Each of these pieces of information puts more information and connection in the decision process. The mediator then allows any concern that may need clarification from the participants to draw their trust in the mediation process.
In mediating the conflict between Mr. Thibideau and Mr. Kane, the process starts with an open talk. The mediator talks about the mediation process as they address the disputants. Even though the mediator does not appreciate their acceptance of coming together and talking about the mediation process, one can appreciate the mediator for relaying the mediation process’s main objectives and letting them know about the process. The mediator then helps each of them understand the obstacles that have led to their case’s difficulty getting resolved. Furthermore, one can also complement the mediator for letting the participants speak out their minds to help determine their perception of the process. However, the mediator may be criticized for explaining how its structure’s various changes were a great disadvantage to Mr. Thibideau. In that perspective, one may understand that she had taken sides, yet she was a mediator.
During the mediation process’s opening stage, the mediator should have just welcomed the conflicting parties, introduced them to the mediation process, and appreciated them for their acceptance to participate in the process. The mediator also needed to explain the negotiation process’s main objectives to the parties: their communication and negotiation for a peaceful relationship. Also, the parties needed to know the mediator’s main role in the mediation process. That is, the mediator protects the confidentiality of the caucus conversations and, at the same time, facilitate communication between the two parties. However, during Rudofsky’s negotiation process, she included very few elements expected in the first negotiation stage. For instance, she talked about the negotiation process and let them say their thought towards negotiation, which is also an important factor in the negotiation process. She also did not explain the rules expected in the negotiation process. However, she encouraged both conflicting parties to cooperate towards negotiation to make the process more easily and understandable.
During the opening stage, the Mediator, Rudofsky, should have used it as an opportunity to organize the conversation. She should have helped the rival parties be intentional about how they should have the conversation taking place. She ought to have organized the conversation before she jumps into the conversation in the mediation process. It would have let the parties be in control as she lay out the ground rules with what was to be discussed in the process. Most importantly, she ought to have introduced herself to the two parties during this opening stage and tells them of her experience and the reason for the need for mediation. That would make them understand why she has come for the mediation as she talks of the benefits of mediation. As a result, she would have earned trust from both Mr. Thibideau and Mr. Kane such that no one would think that she is after someone’s gaining during the negotiation process.
Besides, she ought to have had some other things in her mind during the opening stage, including caucus, joint session, need, and desire to build the rapport and trust between the individual rival parties. Building rapport would be important as it makes the rival parties open enough to discuss their mind and thoughts that may be important in the process. Additionally, the caucus is also important as it may be necessary when one of the parties has a higher tension that may need to be addressed separately. Caucus is generally considered to be part of the mediation process as a private and confidential meeting of members on the particular side of the dispute with the mediator ( Liu, 2018 ). They meet majorly to discuss the options to find the solution. The meeting is separate from their joint session in which all parties come together to discuss their rivalry together with the help of the mediator. In that point of view, Rudofsky would have allowed an organized caucus with both Mr. Thibideau and Mr. Kane separately to discuss their views and help them calm down to come together and resolve their disputes.
Communication stage .
The main aim of the communication stage is to allow expression and understanding between the rival parties. During this stage, the mediator allows the negotiating parties to explain their positions regarding the dispute in front of each other. The stage primarily involves open-ended questions from these rival parties or the mediator towards the particular rivaling party to clarify issues that may bring misunderstanding. The questions are then accompanied by open-ended questions followed by feedback that permits the mediator to listen to the clues about what may be driving the rivaling parties to have conflict. At this stage, the process needs delicate questions, and skillfully attitude that help keep the conversation moving forward (Tseng et al., 2017) . More importantly, these need to help keep building the rapport between the two parties, and the mediator maintained as the conversation is on the move. The expected result at the communication stage is to have the two rivaling parties have an opportunity to air their perspectives and have the self-confidence that their point of view and opinions have been heard. Furthermore, the communication process also discloses hidden values and interests.
In Mr. Thibideau's mediation process and Mr. Kane’s conflict, the mediator can be complimented when she uses a conversation strategy to allow turn-taking during the communication process. For instance, she allows Mr. Thibideau to express his concern. After that, she then gives Mr. Kane’s side a chance, raising their concern regarding the conflict. Besides, as the conversation grows tense, the mediator asks for a caucus with each of the rivaling parties to help her understand a little bit more about some of the important things that these two parties consider in the conflicting issue. The strategy was a good one indeed since knowing these important elements to these two parties would set a way to have the conversation consider these elements. Furthermore, the caucus also helps relieve the existing tension evident in their conversation when addressing the company’s issue, losing about 750 dollars. Furthermore, at the caucus with Mr. Thibideau, she promised the party that whatever she would open up to say will be kept undisclosed to anyone. That gives her confidence to relay her thoughts and important things he would inquire from his former employer Robin Kane.
However, Mr. Thibideau does not trust Rudofsky as a mediator at the point of the conversation. That is evident in their caucus when Thibideau questions her trustworthiness, forcing her to swear. It would have been important if the mediator first of all gains each party’s trust before starting the communication. When trust comes before communication, it makes communication to be much better in the mediation process. That can be brought by the aid of body language, which builds trust when accompanied by communication. The mediation process’s success depends deeply on spending much of the time in the communication stage since it is this stage that both parties are allowed to expound on their opinion regarding the conflicting case. Besides, Rudofsky would have also let the parties ask each other more questions to capture the most important ideas and the most important elements of each mediating party. However, if the two parties could not ask each other questions regarding the issues due to the tensions involved, she would have asked more open-ended questions that allow her to draw some important ideas and views of the particular conflicting parties.
Considering her approach in the caucus that she held with Mr. Thibideau, she would have started the caucus by, first of all, slowly asking some open-ended questions and then possibly elicited the discussion with Mr. Thibideau. She would then carefully listen to what he says and acknowledge her feelings as he expresses himself. Besides, he would then summarize her findings but avoiding any kind of evaluation. Most importantly, confidentiality is an integral part of the caucus process (Hörner et al., 2015) . Hence it would have been significant if the Mediator, Rudofsky, would clarify what information should be kept confidential before starting the exchange of information and perhaps bargaining.
While in the caucus with Mr. Kane and his attorney, the Mediator shifted the discussion when Kane’s attorney tried to shed light on the weaknesses of the Plaintiff’s claims. The Mediator shifted the debate by asking Thibideau about his relationship with Mr. Thibieau before the conflict. That was a good tactic since the mediation’s main aim was to avoid any further tension that may be land the two parties into the court process (Dhiaulhaq et al., 2015) . Therefore, highlighting the Plaintiff’s claims’ weaknesses would fuel the process of landing the parties in court. The tactic was an important strategy to ensure the mediation process’s success.
Negotiation stage
The negotiation process is a mediation stage in which the two rivaling parties come together and have a discourse to reach an agreement by discussing between themselves or involving their representatives with a mediator's aid. Each party needs to consult their lawyer or representatives if their representatives or lawyers represent them during the negotiation process. As the conversation continues via the caucus, it is evident that the mediation process has entered the negotiation stage. While talking to Mr. Thibideau privately, the Mediator, Rudofsky, realizes that what he needs from Mr. Kane is simply an apology and an acknowledgment that he was mistreated during his time back in the company.
Additionally, he also needs to ask for some additional money to pay for the various le losses he incurred during his business engagement. However, the mediator does not give him time to quote the amount of money she may require. Instead, she interrupts him and states that the stage is too early to start talking about the money he will be paid for the losses he incurred. The mediator then goes ahead and tells Mr. Thibideau that on the money mix issue, he must consult with the other party to decide when to start the discussion of money in the case. Even though the strategy may not be right for denying Mr. Thibideau an opportunity to quote his expectation, the move also plan for the same kind of discussion with Mr. Kane’s team is good. However, if she would allow him to quote the figure that he may have been interested in getting would have given her as the mediator a better clue and a forecast of handling the issue if the process gets to the need to discuss the money issue.
However, her strategy to have a caucus with Kane’s team about the same issue was also a good move. It was important to involve the other party’s view to help him strategize on the next move and get what they are thinking about concerning the mediation process. Furthermore, working with the two of them to develop the figure was important since the figure’s quoting would be better understood and heard directly from the rivaling parties. Additionally, it would allow her to formulate the framework of discussing the same with the two parties to make it simpler. While she moves to have a caucus with Mr. Kane, she asks Mr. Kane offers that Mr. Thibideau never suggested. For instance, she asks him if there is a possibility of re-employing Mr. Thibideau on other posts other than a salesman. After Mr. Kane tells her that he laid off Mr. Thibideau based on the lack of good qualities of a salesman considering the changing nature of the market, however, she knows back in her mind that Mr. Thibideau never asked for this particular offer. Instead, he asked for an apology and some money mix, of which she never gave him time to quote the figure.
During the negotiation process, most of the time, the rivaling parties make insulting offers to their counterparts. That makes the negotiation process quite difficult. For example, these parties may make such insulting and complicated offers and demands since their expectations influence them (Program on Negotiation at Harvard Law School, 2020) . They may set high expectations due to being misguided by their particular lawyers. One party may also decide to insult expectations after being triggered by the other party’s being unreasonable during the mediation process. Besides, anger, wish, and misunderstanding may also be some reasons a party may end up giving unreasonable or unachieved offers.
Mediator Rudofsky, before starting the negotiation process, should have ensured to set three important conditions for the two conflicting parties. That is good faith, viability, and early abandonment of the sham (Levine, 2015) . Good faith is the parties’ willingness to allow the negotiation process to work effectively by conceding one another. Mainly, making the concession is the basic and important factor in the negotiation process. It is made in the form of offers that one party may give to their counterpart. Viability, on the other hand, is each party’s ability to improve its offers better. Most parties at the beginning of offers always tend to give sarcastic offers to their rivals. However, after a series of discussions and consideration of several factors, it is important that the party reconsiders their offers and make them realistic and favorable to the other party to make the process successful. On the other hand, a sham is an exaggerated power claim by one of the parties under negotiation. These are employed by a particular party to make unreasonable demands.
In that perspective, Rudofsky should have, first of all, ensure that the parties would negotiate in good faith by making a reasonable concession to one another. Besides, both Mr. Kane and Mr. Thibiteau should be able to make better on their offers and be willing to abandon their respective sham positions before the beginning of the negotiation. Furthermore, the mini-max principle helps in governing the negotiation process. The principle states that even if each negotiating parties expect to gain something from the process, they are motivated to minimize its losses and maximize its gains.
One may appreciate Rudofsky for her tactics of using a cooperative bargaining style between Mr. Thibideau and Mr. Kane. Even though she uses caucus to conduct the bargaining process, she uses her persuasions to make the negotiation easy and make the parties only focus on the other party’s offer. They both listened to the other party’s offer and needs to help them come up with reasonable offers. As a result, the soft negotiation made the two parties develop a compromised gain since Mr. Thibideau agreed to be employed in a different department of the company with a different salary. At the same time, he gets a compensation amounting to one hundred and eighty dollars from Mr. Kane. During the onset of negotiation, Mr. Thibideau gave out his extreme outer limit of two hundred dollars. However, Rudofsky did not take Mr. Thibideau’s sham seriously. As a result, she managed to calm him down with the preferred offer and agreed to take one hundred and eighty dollars as compensation to be paid in four years.
It would have been better if Rudofsky brought the two parties together during negotiation in an open and joint meeting. It would have maintained the attention of both parties during the negotiation process and avoided any possibility of any of the parties getting anxious and upset when Rudofsky keeps them waiting for a long time while she engages the other party. It would have been better if Rudofsky improved the use of caucus by engaging the waiting party in a way. For instance, she would give them some assignments, such as asking them to write down the mediation process’s best and worst outcomes. As they do this, their attention will be captured in the process, and they may not feel bored when they are left alone. Furthermore, living a party busy working on a particular task makes them not only think about themselves while waiting, but they also feel that they are still engaged in the negotiation process. It would also be important to acknowledge whatever they have during their lonely time by asking them to share their list.
Another important factor that would have been beneficial to the two parties if Rudofsky would have employed joining meetings during negotiation is to have created an honest expression and offers from the two conflicting parties. Since the two parties have been long-time friends and working in the same company, it would be important for the mediation process to leave them with an ongoing relationship (Neill, 2020) . For example, these two parties have been coworkers in the same company. Therefore, since one of the accepted offers was to reinstate Mr. Thibideau back to be working in the same company, the honest expression would have been enhanced by the joint negotiation to enhance an ongoing relationship. Therefore, the negotiation process would have been better if Rudofsky would have strategized it with an open meeting talk.
Closing stage
If the conflicting parties have reached a consensus, the mediators end the process by possibly putting its main provision in writing. Additionally, the mediator asks each rivaling side to sign the written summary of the mediation agreement. However, if the parties refused to reach an agreement, the mediator would end the mediation process by helping the parties determine if it would be important to meet again later or continue the negotiation process via phone calls. These two must be considered since the negotiation process may end in one of them, agreement or no agreement.
As Rudofsky terminates the mediation process, she brings the two parties in a joint meeting to tell Mr. Kane and his colleague about Mr. Thibideau’s acceptance of his offer. After bringing that into the notice, she explains that she never intended to hurt the company, nor Robin Kane individually, but bring peace between them. While finishing, she then asks them to sit together and have some coffee, and then they do the work of putting the rest of the details to rest. However, she did not give them the chance to express their sincere feeling about the process and its outcome. Some parties may feel that the mediation process did not favor them due to some issues. As a result, they may end the process but may not be on good terms with the fellow shortly.
Additionally, he should have organized a written summary of the negotiation process and the agreement. The two parties put their signature to avoid any change of mind by any of the two parties in the future. As a result, Mr. Kane may refuse to pay the agreed amount to Mr. Thibideau since there would be no proof of the agreement he signed against his name.
Rudofsky, during the mediation ending process, should have ended the mediation process by offering closing remarks. During the closing remarks, the mediator should have generally thanked the two parties for their sacrificed time and effort to ensure the mediation’s success. Besides, it may have also been a good idea to point out some of the more positive aspects of each party’s involvement and show how such behaviors came together to arrive at a positive solution (Crsatlantic, 2020) . More importantly, Rudofsky should have ensured that both Mr. Thibideau and Mr. Kane, together with their teams, have a clear understanding of the specific terms of the resolution that has been arrived at. It would have been important to have spent some of the time with the two parties to work through the details of the proposed solution to understand whatever the agreement entails and that the agreement is achievable. Care also needed to be taken to ensure that the two parties become fully aware of the required steps to follow, the timeliness, and who will bear the responsibility of any taken action.
During the mediation process, an apology may sometimes be important to a particular party (Alex, 2020) . For instance, Mr. Thibideau required an apology after what he went through due to losing his job from the company. However, a party decides to apologize or to forgive. If an apology is not given, like in this case, it should have been important for Rudofsky to assist Mr. Kane in making an apology effectively and in an understanding by Mr. Thibideau. As a result, the reconciliation would then allow them to interact freely while they work together soon.
Summary and Conclusion
Rudofsky has used several techniques in the negotiation process to bring Mr. Thibideau and Mr. Kane to come into reconciliation. Most of the strategies she used in the process deserve complements since they were later fruitful. However, she needed some of the strategies to improve or approach the particular circumstances in a different way. As evident above, before she brought the two parties together in an open meeting, she needed to first talk to the two parties privately so that they can see the need for mediation before having an open conversation with them. She just decided to start the mediation process at the second stage, skipping the first and important stage that helps come up with the best strategies to use for the remaining four stages and how to carry out each stage.
At the closing stage, she should have ensured that both of them had a full opportunity to communicate respectfully and openly and that they have been provided with all the opportunities of repairing and restoring their broken relationship throughout the mediation process since they agreed to work together again. Furthermore, the closing would have been an excellent opportunity to work through any final issues or concerns and rebuild trust between Mr. Thibideau and Mr. Kane. It should have also been important to ensure that the two parties are psychologically satisfied and feel that they have been heard and acknowledged in the mediation process to help them move forward from the conflict.
In conclusion, the five stages involved in the mediation process are crucial for any mediator. Adhering to these five stages and properly executing each step is important for the entire process to be as smooth as possible. Furthermore, mediation is a facilitated negotiation between two conflicting parties. Therefore, its success hinges on the mediator being fully aware of each step and act to maximize the result of each of these steps by sensitively and properly using them.
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