Introduction
This part of the paper will discuss the research background, research problem, research hypothesis, and objectives. Besides, the section explores the significance and limitation of the study. Also, this part presents the research timeline.
Research background
By definition, mediation is the process of solving a disagreement through bringing together parties in conflict via voluntary participation. Mediation is both a process and a procedure characterized by the participation of a mediator, without adjudicator powers, who communicate systematically between the conflicting parties with the primary goal of convincing the parties to take the main responsibility towards dispute resolution. Mediation is characterized by the elements of neutrality and confidentiality.
The declaration, Directive 2008/52/EC of the European Parliament and the Council on Certain Aspects of Mediation in Civil and Commercial Matters, as a policy within the European Union (EU) has a broad framework that guides the mediation process across different borders. The directive was introduced in 2008 and requires the EU members to apply its regulations, provisions, and laws in mediation. Even though all member states are required to implement the directive, there have been complaints from some quarters on issues such as the scope of its application about state and market. It is therefore important to review the effectiveness of the implementation of the European Union mediation policy as a means for conflict resolution. This study will attempt to explicitly review the implementation of European Union mediation as a means for conflict resolution and its effectiveness across the borders of Europe.
Research problem statement
Previously, the mediation model was depicted as a linear process in which a mediator directly conveyed messages to each of the conflicting parties, without necessarily ensuring that they take the primary responsibility of predetermining the outcome. In the twenty-first century, the mediation process was remodeled to be an inclusive process that allows the conflicting parties to proactively participate in the conflict resolution process. The directive, 2008/52/EC of the European Parliament and the Council on Certain Aspects of Mediation in Civil and Commercial Matters, policy borrows heavily from this model.
The need for reviewing the effectiveness of the policy, as applied in the EU mediation, necessitates more research in the areas of scope and applicability without attracting unnecessary contempt. It is for these reasons that the research will attempt to provide a framework for the implementation of the EU mediation directive. At the end of the research, the member states that are in the process of implementing the EU mediation directive will have mechanisms that they can use to decide on the most appropriate implementation strategies within different regulations, provisions, and laws.
Research hypothesis
Null hypothesis: The implementation of European Union mediation as a means for conflict resolution is very effective across the EU member states. Alternative hypothesis: The implementation of European Union mediation as a
means for conflict resolution is not effective across the EU member states.
The research aims and objectives
Taking the role and importance of mediation into consideration, this particular research study aims to analyze the degree to which the implementation strategy, for the EU mediation declaration, influences the effectiveness of conflict resolution across the borders of Europe. The research study also has particular sub-objectives that are mentioned below:
- To analyze the importance of mediation directive to cohesive existence of the European Union member states.
- To explore the laws, regulations, and directives that control the mediation process as indicated in the EU mediation directive.
- To investigate the impact of the EU mediation policy on the position of influence among individual member states.
Research questions
- How effective is the EU mediation declarative in promoting peaceful coexistence and border integrity among member states?
- What is the relevance of the EU mediation policy, about market and state, in its application?
- How effective is the EU mediation policy as a global player in cohesion within and without the continent of Europe?
Significance of the study
Understanding the effectiveness in the implementation of the EU mediation policy is significant towards establishing the influence of the union in promoting cohesion among member states. This research will present the EU mediation policy framework and its applicability within the current geographical strategies of conflict resolution between states. The study will also provide recommendations on how the EU member states can effectively implement and manage their mediation policies within the European Union mediation directive.
Limitations of the study
Insufficient information exists concerning the actual implementation of the EU mediation directive, about practical successes or failures. The study will not be a magic bullet ineffectiveness of mediation policy implementation. It will only provide structures that must be combined with the values and goals of the warring parties to ensure an effective and successful mediation strategy. Therefore, member states within the EU cannot implement the recommendations without reflecting on external and internal weaknesses in promoting cross-border cohesion.
Literature Review
Introduction
This chapter will discuss the scope of mediation, the process of mediation, and how the EU mediation policy is relevant to its member states. Besides, this part will review theoretical reflection on the mediation process and the underlying principles of proactive and successful arbitration.
Mediation and its significance
According to Hayes (2013), the mediation process involves the facilitator (mediator) who coordinates the negotiation between the conflicting parties to resolve the disagreement. Reflectively, a well-structured mediation process or directive should be flexible to accommodate discussion of all the controversial issues in a sympathetic environment. Besides, it should have structures that can address the needs of each party within high levels of confidentiality and systems that save time while minimizing any possibility of a fresh conflict escalation during the arbitration process1. As opined by Kember and Zylinska (2012), depending on the complexity of the issue of interest, the mediation process is often very fast and relatively inexpensive, in comparison with the legal or judicial approach to conflict resolution. Since the process is controlled by the actions of the warring parties, that must accept full responsibility before a solution is drawn, it is easy to draw a winning procedure that is convenient. As a result, the two parties may achieve a truce and satisfactory results2.
When meditation is necessary
Mediation is applicable in nearly all conflict situations. About the EU mediation declaration, Palo and Trevor (2012) noted that the scope of the mediation policy captures political, social, and economic conflicts. The EU mediation declaration was created to ensure that individual member states preserve their relations and adapt the quickest means of addressing any conflict between the states. Besides, the EU mediation policy provides a universal approach to solving geographical conflicts for each member to minimize the challenge of different conflict resolution laws practiced by each independent state. The EU mediation policy offers structures for addressing business-related conflicts, labor conflicts, boundary conflicts, and social conflicts3. However, the policy is heavily skewed towards addressing political and commercial conflicts across the European Union member states.
Mediation Process Matrix
The mediation process matrix offers a guideline for managing the conflict resolution process. As discussed by the Association for International Arbitration (2008), the outstanding elements proposed by the EU mediation process matrix include confidentiality, ideal setting, proper mediation format, and creation of impartial ground rules4. Kember and Zylinska (2012) opined that is necessary to set a flexible agenda that is presented successively. However, it is indispensable to manage the timing and cost implications to meet the conflict resolution deadlines, when adopting the decision making modalities. When meditating, the arbitrator has the role of defining the mandate of the conflict resolution process and creating an appropriate mediation team. Besides, the mediator may have to design an appropriate media channel that is accepted by both parties5.
As discussed by Hopt and Steffek (2012), the scope of the EU mediation includes an application, quality, courts, enforceability, confidentiality, limitations, and adequate process communication. These topics are summarised in Article1 to Article10. The scope of the EU mediation directive includes “mediation conducted by a judge who is not responsible for any judicial proceedings concerning the dispute in question6. Besides, it covers commercial and civil matters as defined in article 1b which defines the relevant applicable act. Also, the directive applies to cross-border conflicts “in which at least one of the parties is domiciled or habitually resident in a Member State other than that of any other party on the date of the cross-border disagreement”7.
The quality and the process of actual mediation depend on the declaration, European Code of Conduct for Mediators, which ensures that the mediators remain objective and impartial when resolving conflicts between states. Through the general rules on cross-border and national enforcement policy, Palo and Trevor (2012) noted that the EU Mediation directive has remained relevant since the aspect of contractual and statutory confidentiality has become the underlying factor in information disclosure. For instance, Article 7(1) states that “mediation directive of the Member States have to ensure that neither the mediator nor those involved in the administration of mediation process shall be compelled to give evidence in arbitration regarding information disclosure”8. The EU mediation directive is well equipped with a sustainable legal framework that promises the member states “mutually beneficial solutions without the worry of suffering disadvantages form the mediation attempt”9.
Relating the literature review to the research topic
From the above reflection, it is apparent that the mediation process is of great importance when solving economic, social, and political conflicts. Thus, understanding the effectiveness in the implementation of the EU mediation policy is significant towards establishing the influence of the union in promoting cohesion among member states. The study will also provide recommendations on how the EU member states can effectively implement and manage their mediation policy within the European Union mediation directive.
Research Methodology
Introduction
This part of the paper will review the appropriate method of collecting and analyzing data. This research will be conducted using a research survey study approach. The use of the qualitative research approach will facilitate understanding of the scope of the EU mediation policy.
Research Techniques
The researcher will be fully involved in preparing both quantitative and qualitative research phases, implementing the survey and interviews, and analyzing the data gathered. A sense of neutrality will be maintained and the researcher will research an explorer. The large scale questionnaire survey for the quantitative phase will help identify which competencies and best mediation approaches are most common, while the qualitative phase will help focus on the actual scope of the EU mediation policy.
Research Approach
This research will be conducted using a research survey study approach. The researcher chose a qualitative approach rather than a quantitative one because the scope of the research is focused, subjective, dynamic, and discovery-oriented. The qualitative approach is best suited to gain proper insight into the situation of the case study. Besides, qualitative data analysis is more detailed than a quantitative one. Moreover, this approach will create room for further analysis using different and divergent tools for checking the degree of error and assumption limits. The researcher will use direct interviews with open-ended and close-ended questionnaires to target respondents.
Data, which will be collected through one-on-one interviews using open-ended and closed-ended questions, will be scrutinized. Each question asked will be comprehensive to ensure that respondents have an opportunity to give deep and answers that provide an insight into the research problem by the use of Google docs software. Transcription will then be done to each of the recorded interview processes. For each response from each participant, the recorded transcripts will be perused to coin relevant and most appropriate response. Factually, instances of divergent or convergent opinions by one or more respondents will be marked appropriately.
To collect the data necessary for this study, several steps will be taken to ensure that appropriate care is taken to protect the participants. The participants will be given consent forms that outline the topic of discussion and any relevant information that the participant might need before agreeing to be interviewed. Once consent is obtained, interviews will set up with the selected participants, in which the author of this study will act as the interlocutor with the participant, giving semi-structured individual interviews that will be conducted in the English language so that communication is given the depth that might not be allowed in interviews conducted in a language that is secondary to the participants.
Research Samples
This research will target EU diplomats randomly chosen from five embassies in the UK since they know the EU mediation directive. A sample space of 10 participants will be interviewed. This sample chosen for the survey presents clear, scientific, and verifiable criteria for making decisions. Putting into consideration the above strengths, it is more representative of the sample space chosen randomly within a specified interval. Reflectively, this will permit comparative research, especially when the qualitative design is adopted to give room for testing accuracy and a degree of biasness. Generally, the decision-making process is a science that reviews different aspects of a phenomenon before the adoption of a quantifiable approach. The survey will be a success and a true representation of the subject of the study.
Justification of the methods to be used
The use of the qualitative research approach will facilitate understanding of the scope and functionality of the EU mediation declaration. Quantitative methods used in this study will generally apply to the analysis of the collected data where analytical tools such as chi-square, regression, and correlation methodologies will be used. These methodologies will help in the identification of statistical patterns in the data collected from embassies using questionnaires and interviews.
The collected quantitative data will be coded and passed through the Statistical Package for Social Sciences (SPSS), version seventeen. In the process, cross-tabulation will be used to compare and contrast the perception of the effectiveness of the implementation of the EU mediation directive. To quantify the relationship between the independent and dependent variable, ANOVA will be essential besides figures, charts, and tabular representation of correlation analysis.
Ethical considerations
During the data collection phase of this study, the researcher will strive to uphold ethics appertaining to scientific research. This will be pursued through the inclusion of an informed consent form in the interview and questionnaire, which the units being studied will be required to read, understand, and consent to before the study is commenced. Additionally, authorization for the conduction of this study will be sought from relevant authorities to ensure transparency. Similarly, the researcher will ensure the confidentiality of the subjects included in this study by insisting on their anonymity, where each subject will be identified using a unique as opposed to the use of names. The data collected will not be used for any other purpose rather than for which it was primarily intended.
The researcher has prior training and experience in data collection and analysis at the college level. Credibility is enhanced by adopting distinct quantitative and qualitative approaches to gathering data and reporting findings. Transferability of the results is theoretically possible by gaining a sufficiently large sample that will be representative of the population of the diplomats, but given that the data will be gathered from organizations, transferability may not be likely.
Dependability will be assured by providing clear, detailed, and sequential descriptions of data collection and analysis procedures. It is a quality that is relying on the study design being congruent with clear research questions, having an explicit explanation of the status and roles of the researcher, providing findings with meaningful parallelism across data sources, specification of basic theoretical constructs and analytical frameworks, and data collection across a range of settings. This study seeks to fulfill these criteria as much as possible. A full effort will be made to accurately and faithfully transcribe data from interviews. In the event of possible misunderstanding, clarification or confirmation will be sought from the interviewee.
Problems and limitations
Since this research will involve mixed methodology, a lot of time will be spent on booking appointments and carrying out the actual interview process. Besides, the movement between one embassy to another, and hiring an interviewer will require a substantial amount of money. Also, the researcher will have to invest in training the data collection agent on the necessary skills for a successful interview and data collection. Besides, accessing some of the documents on past successes of mediation processes may be difficult because this is considered a matter of state security. Generally, the use of qualitative research will facilitate understanding of the scope and functionality of the EU mediation declaration. Besides, the interview process will allow the researcher to ask open-ended questions and capture insights that were ignored at the beginning of the study. Putting into consideration the above strengths, this research paper will be representative of the scope of the investigative topic.
Bibliography
Association for International Arbitration. The New EU Directive on Mediation: First Insights. Ireland: Maklu, 2008.
Hayes, Andrew. Introduction to Mediation, Moderation, and Conditional Process Analysis: A Regression-Based Approach. London: Guilford Press, 2013.
Hope, Klaus, and Felix Steffek. Mediation: Principles and Regulation in Comparative Perspective. London: Oxford University Press, 2012.
Kember, Sarah, and Joanna Zylinska. Life after New Media: Mediation as a Vital Process. Boston: MIT Press, 2012.
Palo, Guiseppe, and Mary Trevor. EU Mediation Law and Practice. London: Oxford University Press, 2012.
Footnotes
- Andrew Hayes, Introduction to Mediation, Moderation, and Conditional Process Analysis: A Regression-Based Approach (London: Guilford Press, 2013), 205-231.
- Sarah Kember and Joanna Zylinska, Life after New Media: Mediation as a Vital Process (Boston: MIT Press, 2012), 45-67.
- Guiseppe Palo and Mary Trevor, EU Mediation Law and Practice (London: Oxford University Press, 2012), 31-56.
- Association for International Arbitration, The New EU Directive on Mediation: First Insights (Ireland: Maklu, 2008), 23-89.
- Sarah Kember and Joanna Zylinska, Life after New Media: Mediation as a Vital Process (Boston: MIT Press, 2012), 45-67.
- Klaus Hopt and Felix Steffek, Mediation: Principles and Regulation in Comparative Perspective (London: Oxford University Press, 2012), 247-320.
- Andrew Hayes, Introduction to Mediation, Moderation, and Conditional Process Analysis: A Regression-Based Approach (London: Guilford Press, 2013), 205-231.
- Guiseppe Palo and Mary Trevor, EU Mediation Law and Practice (London: Oxford University Press, 2012), 31-56.
- Association for International Arbitration, The New EU Directive on Mediation: First Insights (Ireland: Maklu, 2008), 23-89.