Mediation
Mediation, a form of alternative dispute resolution (ADR), aims to assist two (or more) disputants in reaching an agreement. Whether an agreement results or not, and whatever the content of that agreement, if any, the parties themselves determine, rather than accepting something imposed by a third party. The disputes may involve states, organizations, communities, individuals or other representatives with a vested interest in the outcome. Mediators use appropriate techniques and/or skills to open and/or improve dialogue between disputants, aiming to help the parties reach an agreement (with concrete effects) on the disputed matter. Normally, all parties must view the mediator as impartial. Mediation can apply in a variety of disputes, such as commercial, legal, diplomatic, workplace, community and divorce or other family matters.
Mediation vs. Conciliation
Much debate has focused on the distinction between conciliation and mediation, and no universal agreement has emerged. Conciliation sometimes serves as an umbrella-term that covers all mediation and facilitative and advisory dispute-resolution processes. Neither process determines an outcome, and both share many similarities. For example, both processes involve a neutral third-party who has no enforcing powers.
One significant difference between conciliation and mediation lies in the fact that conciliators possess expert knowledge of the domain in which they conciliate. The conciliator can make suggestions for settlement terms and can give advice on the subject-matter. Conciliators may also use their role to actively encourage the parties to come to a resolution. In certain types of dispute the conciliator has a duty to provide legal information. This helps any agreement reached to comply with any relevant statutory framework pertaining to the dispute. Therefore conciliation may include an advisory aspect.
Mediation works purely facilitatively: the practitioner has no advisory role. Instead, a mediator seeks to help parties to develop a shared understanding of the conflict and to work toward building a practical and lasting resolution.
Several different styles of mediation exist: evaluative, facilitative, and transformative. Evaluative mediation does have somewhat of an advisory role in that its practitioners evaluate the strengths and weaknesses of each side's argument should they go to court; whereas facilitative mediators and transformative mediators do not do this. Furthermore, their definitions of mediation differ in that evaluative mediation has the main drive and goal of settlement while transformative mediation, in contrast, looks at conflict as a crisis in communication and seeks to help resolve the conflict thereby allowing people to feel better about themselves and each other. The agreement that arises from this type of mediation occurs as a natural outcome of the resolution of conflict.
Both mediation and conciliation serve to identify the disputed issues and to generate options that help disputants reach a mutually-satisfactory resolution. They both offer relatively flexible processes; and any settlement reached should have the agreement of all parties. This contrasts with litigation, which normally settles the dispute in favour of the party with the strongest argument.
Common Aspects of Mediation
Mediation as a process involves a third party (often an impartial third party) assisting two or more persons, ("parties" or "stakeholders") to find mutually-agreeable solutions to difficult problems.
People make use of mediation at many different levels and in multiple contexts: from minor disputes to global peace-talks. This makes it difficult to provide a general description without referring to practices in specific jurisdictions — where "mediation" may in fact have a formal definition and in some venues may require specific licenses. This article attempts only a broad introduction, referring to more specific processes (such as peace process, binding arbitration, or mindful mediation) directly in the text.
While some people loosely use the term "mediation" to mean any instance in which a third party helps people find agreement, professional mediators generally believe it essential that mediators have thorough training, competency, and continuing education. The term "mediation" also sometimes occurs incorrectly referring to arbitration; a mediator does not impose a solution on the parties, whereas an arbitrator does.
While mediation implies bringing disputing parties face-to-face with each other, the strategy of "shuttle diplomacy", where the mediator serves as a liaison between disputing parties, also sometimes occurs when face-to-face mediations are not possible.
Some of the types of disputes or decision-making that often go to mediation include the following:
Family
Prenuptial agreements
Financial or budget disagreements
Separation
Divorce
Financial distribution and spousal support (alimony)
Parenting plans (child custody and visitation)
Eldercare issues
Family businesses
Adult sibling conflicts
Disputes between parents and adult children
Estate disputes
Medical ethics and end-of-life issues
Workplace
Wrongful termination
Discrimination
Harassment
Grievances
Labor management
Public disputes
Environmental
Land-use
Disputes
Landlord/tenant
Homeowners' associations
Builders/contractors/realtors/homeowners
Contracts of any kind
Medical malpractice
Personal injury
Partnerships
Non-profit organizations
Faith communities
Other:
Youth (school conflicts; peer mediation);
Violence-prevention
Victim-Offender mediation
Mediation commonly includes the following aspects or stages:
a controversy, dispute or difference of positions between people, or a need for decision-making or problem-solving;
decision-making remaining with the parties rather than imposed by a third party;
the willingness of the parties to negotiate a "positive" solution to their problem, and to accept a discussion about respective interests and objectives;
the intent to achieve a "positive" result through the facilitative help of an independent, neutral third person.
In the United States, mediator codes-of-conduct emphasize "client-directed" solutions rather than those imposed by a mediator in any way. This has become a common, definitive feature of mediation in the US and in the UK.
Mediation differs from most other adversarial resolution processes by virtue of its simplicity, informality, flexibility, and economy.
The typical mediation has no formal compulsory elements, although some common elements usually occur:
each of the parties allowed to explain and detail their story;
the identification of issues (usually facilitated by the mediator);
the clarification and detailed specification of respective interests and objectives;
the conversion of respective subjective evaluations into more objective values;
identification of options;
discussion and analysis of the possible effects of various solutions;
the adjustment and the refining of the proposed solutions;
the memorialization of agreements into a written draft
Due to the particular character of this activity, each mediator uses a method of his or her own (the law does not ordinarily govern a mediator's methods), that might eventually be very different from the above scheme. Also, many matters do not legally require a particular form for the final agreement, while others expressly require a precisely determined form.
Most countries respect a mediator's confidentiality.
Conflict Management
Society perceives conflict as something that gets in the way of progress. It is regarded as negative symptom of a relationship that should be cured as quickly as possible. However within the mediation profession conflict is seen as a fact of life and when properly managed it can have many benefits for the parties and constituents. The benefits of conflict include the opportunity to renew relationships and make positive changes for the future. Mediation should be a productive process, where conflict can be managed and expressed safely. It is the mediator’s responsibility to let the parties express their emotions entailed in conflict safely. Allowing the parties to express these emotions may seem unhelpful in resolving the dispute, but if managed constructively these emotions may help towards a better relationship between the parties in the future.
Effectiveness
Within the ADR field there was a need to define the effectiveness of a dispute in a broader term, which included more than whether there was a settlement. Mediation as a field of dispute resolution recognized there was more to measuring effectiveness, than a settlement. Mediation recognised in its own field that party satisfaction of the process and mediator competence could be measured. Surveys of those who have participated in mediation reveal strong levels of satisfaction of the process.
The benefits of mediation include:
Discovering parties' interests and priorities
Healthy venting of emotions in a protected environment
An agreement to talk about a set agenda
Identifying roles of the constituents, such as relatives and professional advisors
Knowledge of a constructive dispute resolution for use in a future dispute
Role of Mediator
Mediator functions are classified into a few general categories, each of which necessitates a range of specific interventions and techniques in carrying out a general function;
Creating favorable conditions for the parties' decision-making
Mediators can contribute to the settlement of disputes by creating favorable conditions for dealing with them. This can occur through:
Providing an appropriate physical environment- this is through selection of neutral venues, appropriate seating arrangements, visual aids and security.
Providing a procedural framework- this is through conduct of the various stages of mediation process. As the chair of the proceedings, they can establish basic ground rules, provide order, sequence and continuity. The mediators opening statement provides an opportunity to establish a structural framework, including the mediation guidelines on which the process will be based.
Improving the emotional environment- this is a more subtle function and varies among mediations and mediators. They can improve the emotional environment through restricting pressure, aggression and intimidation in the conference room by providing a sense of neutrality and by reducing anxiety among parties.
[edit] Assisting the parties to communicate
People in conflict tend not to communicate effectively and poor communication can cause disputes to occur or escalate. For mediators to encourage communication efficiently, they themselves must be good communicators and practice good speaking and listening skills, pay attention to non-verbal messages and other signals emanating from the context of the mediation.
[edit] Facilitating the parties' negotiations
Mediators can contribute expertise and experience in all models and styles of negotiation so that the parties are able to negotiate more constructively, efficiently and productively. This function is prominent after the problem-defining stages of mediation and involves mediators bringing direction and finesse to the negotiation efforts of the parties. Mediators can also act as catalysts for creative problem solving, for example by brainstorming or referring to settlement options generated in analogous mediation experiences.
Function of Parties
The functions of the parties will vary according to their motivations and skills, the role of legal advisers, the model of mediation, the style of mediator and the culture in which the mediation takes place. Legal requirements may also affect their roles.
Preparation
Whether parties enter mediation of their own volition or because legislation obligates them to do so, they prepare for mediation in much the same way they would for negotiations, save that the mediator may supervise and facilitate their preparation. Mediators may require parties to provide position statements, valuation reports and risk assessment analysis. The parties may also be required to consent to an agreement to mediate before preparatory activities commence.
Disclosure of Information
Agreements to mediate, mediation rules, and court-based referral orders may have requirements for the disclosure of information by the parties and mediators may have express or implied powers to direct them to produce documents, reports and other material. In court referred mediations parties usually exchange with each other all material which would be available through discovery or disclosure rules were the matter to proceed to hearing. this would include witness statements, valuations and statement accounts.
Party Participation
The objectives of mediation, and its emphasis on consensual outcomes, imply a direct input from the parties themselves. There will be an expectation that parties attend and participate in the mediation meeting and some mediation rules require a party, if a natural person, to attend in person. However party participation is asessed in overall terms so failure to participate in the initial stages may be redeemed later in the process.
Confidentiality
Confidentiality is a powerful and attractive feature of mediation. The private and confidential aspect of mediation is in contrast with the courts and tribunals which are open to the public, and kept on record. Privacy is a big motivator for people to choose mediation over the courts or tribunals. Although mediation is promoted with confidentiality being one of the defining features of the process, it is not in reality as private and confidential as often claimed. In some circumstances the parties agree that the mediation should not be private and confidential in parts or in whole. Concerning the law there are limits to privacy and confidentiality, for example if their mediation entails abuse allegations, the mediator must disclose this information to the authorities. Also the more parties in a mediation the less likely it will be to maintain all the information as confidential. For example some parties may be required to give an account of the mediation to outside constituents or authorities .
There are two competing principles involving confidentiality of mediations. One principle is to uphold confidentiality as means to encourage people to settle out of the courts and avoid litigation, while the second principle is that all related facts to the mediation should be available to the courts.
There are a number of reasons why mediation should be kept private and confidential these include:
It makes the mediation appealing
It provides a safe environment to disclose information and emotions
Confidentiality makes mediation more effective by making parties talk realistically Confidentiality upholds mediators reputation, as it reinforces impartiality
Confidentiality makes agreement more final, as there is little room to seek review
Mediation In Business & Commerce
The eldest branch of mediation applies to business and commerce, and still this one is the widest field of application, with reference to the number of mediators in these activities and to the economical range of total exchanged values.
The mediator in business or in commerce helps the parties to achieve the final goal of respectively buying/selling (a generic contraposition that includes all the possible varieties of the exchange of goods or rights) something at satisfactory conditions (typically in the aim of producing a bilateral contract), harmonically bringing the separate elements of the treaty to a respectively balanced equilibrium. The mediator, in ordinary practice, usually cares of finding a positive agreement between (or among) the parties looking at the main pact as well as at the accessory pacts too, thus finding a composition of all the related aspects that might combine. in the best possible way, all the desiderata of his clients.
Academics sometimes include this activity among the auxiliary activities of commerce and business, but it has to be recalled that it differs from the generality of the others, because of its character of independence from the parties: in an ordinary activity of agency, or in the unilateral mandate this character is obviously missing, this kind of agent merely resulting as a longa manus of the party that gave him his (wider or narrower) power of representation. The mediator does not obey to any of the parties, and is a third party, looking at the contraposition from an external point of view.
Global Relevance
The rise of international trade law, continental trading blocs, the World Trade Organization (and its opposing anti-globalization movement), use of the Internet, among other factors, seem to suggest that legal complexity has started to reach to an intolerable and undesirable point. There may be no obvious way to determine which jurisdiction has precedence over which other, and there may be substantial resistance to settling a matter in any one place.
Accordingly, mediation may come into more widespread use, replacing formal legal and judicial processes sanctified by nation-states. Some, like the anti-globalization movement, believe such formal processes have quite thoroughly failed to provide real safety and closure guarantees that are pre-requisite to uniform rule of law.
Following an increasing awareness of the process, and a wider notion of its main aspects and eventual effects, mediation is in recent times frequently proposed as a form of resolution of international disputes, with attention to belligerent situations too.
However, as mediation ordinarily needs to be required by the interested parties and it would be very difficult to impose it, in case one of the parts refuses this process it cannot be a solution.
Fairness
As noted, mediation can only take place in an atmosphere where there is some agreement on safety, fairness and closure, usually provided by nation-states and their legal systems. But increasingly disputes transcend those borders and include many parties who may be in unequal-power relationships.
In such circumstances, with many parties afraid to be identified or to make formal complaints, terminology or rules of standing or evidence slanted against some groups, and without power to enforce even "legally binding" contracts, some conclude that the process of mediation would not reasonably be said to be 'fair'.
Accordingly, even when it is offered and attempts are made to make it fair, mediation itself might not be a fair process, and other means might be pursued.
From a more technical point of view, however, one must recall that the mediation must be required by the parties, and very seldom can it be imposed by "non-parties" upon the parties. Therefore, in presence of entities that cannot be clearly identified, and that practically don't claim for their recognition as "parties", the professional experience of a mediator could only apply to a proposal of definition, that besides would always miss the constitutional elements of a mediation. Moreover, in such circumstances, the counter-party of these eventual entities would very likely deny any prestige of 'party' to the opponent, this not consenting any kind of treaty (in a correct mediation).
More generally, given that mediation ordinarily produces agreements containing elements to enforce the pacts with facts that can grant its effectiveness, note that the legal system is not the only means that will ensure protection of the pacts: modern mediation frequently tends to define economic compensations and warranties too, generally considered quicker and more effective. The concrete 'power' of an agreement is classically found in the equilibre of the pact, in the sincere conciliation of respective interests and in the inclusion of measures that would make the rupture of the pact very little convenient for the unfaithful party. Pacts that don't have such sufficient warranties are only academically effects of a mediation, but would never respect the deontology of the mediator.
Legal Implications of Mediated Agreements
Parties who enter into mediation do not forfeit any legal rights or remedies. If there is no settlement during the mediation, each side can continue to enforce their rights through appropriate court or tribunal procedures. However, if a settlement has been reached through mediation, legal rights and obligations are affected in differing degrees. In some situations, the parties may only wish to have a memorandum or a moral force agreement put in place; these are often found in community mediations. In other instances, a more comprehensive deed of agreement is drafted and this deed serves to bring a legally binding situation. In some jurisdictions a mediated agreement may be registered with the court to make it legally binding and it is advisable to have a lawyer prepare the form or, at the very least, to obtain independent legal advice about the proposed terms of the agreement.
Mediation has opened the door for parties in conflict to resolve their differences through non-traditional judicial forums. Over the last few decades, mediation has brought to light the processes, or alternatives to litigation, that enable parties to resolve their differences without the high cost associated with litigation. Court systems are eager to introduce mandatory mediation as a means to meet their needs to reduce case loads and adversarial litigation, and participants who understand the empowerment of mediation to self-determine their own agreements are equally as eager to embrace mediation as an alternative to costly and potentially harmful litigation.
