On Sat, 24 Jan 2004 09:37:25 UTC, Anthere
<anthere8(a)yahoo.com> wrote:
Dan Drake a �crit:
We do understand, of course, that if mediation
doesn't succeed, and
someone takes the same case to arbitration, a person who is not of good
will is certain to complain that he's being put on trial twice and having to
defend himself against the very same things that came up in mediation.
A mediator is not a judge. He is not there to put someone in accusation.
Yes, that's kind of my point (see below). So long as everyone remembers
that, and remembers to pay no attention whatsoever to such a complaint,
all is fine.
Perhaps my faith that such nonsense will be properly and completely
ignored has been undermined too much by watching this painful process of
trying to assure utter unimpeachable fairness in what is not (as you say)
a judgment process.
He
may even make false claims about what went on in
mediation; hence, the
full legalistic set of rules will have to include some kind of waiver of this
confidentiality.
full legalistic set of rules ?
May we keep the whole process simple, without setting up 15 pages rules
please :-(
Thank you for the reassurance; I was getting the opposite impression from
what has been said on this list. Namely, the difficulty in setting up a
flawless mediation procedure, when the arbitration must by its nature be
even more difficult to set up.
It does not matter really if the disputant makes false
claims about what
went on in mediation; as far as mediation is concerned, the case will be
closed
And as far as arbitration is concerned? It will never allow itself to be
distracted by any kind of claim or complaint about what the acused's evil
enemies did during the mediation process. Excellent.
I'm not being sarcastic, just maybe having some doubts about what will
happen in practice. We all remember that people who are accused of being
dedicated troublemakers are in some cases dedicated troublemakers, expert
in tactics of distraction, confusion, and putting everyone else in the
wrong.
...
MNH having declined mediation, he and the mediation process are now
irrelevant to each other. Anyone who holds that something ought to be
done about him needs to forget the mediation process and concentrate on
getting arbitration working.
The last I knew, MNH agreed to mediation for the article issue, but
requested arbitration for the human dispute issue.
Sorry; I misunderstood. I see that he's relevant to both processes.
...
I'm not sure what this means -- someone on
his side who will watch the
proceedings and form an opinion (for whose benefit?) on their propriety?
Fine, if the parties want it. But again, since mediators have no power --
presumably not even power to send the case to arbitration -- what does it
matter?
This is not a question of putting someone on one side or another, this
is a question of having a neutral observer watching to guarantee the
process is fair.
That's what I wonder about. Mediation is supposed to be fair and impartial
in the first place. If a mediatee decides that the mediators are biased,
he/she tells them to b---er off. What's the need for an observer here?
What happened in mediation cannot be brought up in any later arbitration,
as we just agreed; so, again, who would later need the opinion of a
neutral observer of the mediation?
Of course, if somebody *wants* an observer, and the other party doesn't
have a problem, go ahead. But I still don't understand why it would be a
significant part of the process.