Mediation
Contents
Definition and Core Principles
1.1 What Mediation Is
Mediation is a form of dispute resolution that resolves disputes between two or more parties, facilitated by an independent neutral third party known as the mediator. It is a structured, interactive process where the mediator assists the parties to negotiate a resolution or settlement through specialized communication and negotiation techniques.
1.2 Party-Centered Approach
Mediation is party-centered, focusing on the needs, interests, and concerns of the individuals involved, rather than imposing a solution from an external authority. All participants are encouraged to participate actively.
1.3 Key Characteristics
- Neutral third party facilitates rather than directs outcome
- Process is private and confidential, possibly enforced by law
- Participation is typically voluntary
- No binding decision imposed by mediator
History and Development
2.1 Ancient Origins
The activity of mediation appeared in ancient times. The practice developed in Ancient Greece which knew the non-marital mediator as a proxenetas, then in Roman civilization. Roman law, starting from Justinian's Digest of 530–533 CE, recognized mediation. Romans called mediators by names including internuncius, conciliator, and mediator.
2.2 Modern Professionalization
Now mediation is a form of professional service, and mediators are professionally trained for mediation. As practice gained popularity, training programs, certifications and licensing have produced trained and professional mediators.
2.3 International Acceptance
Mediation is becoming an internationally accepted way to end disputes. The Singapore Mediation Convention offers a relatively fast, inexpensive and predictable means of enforcing settlement agreements arising out of international commercial disputes.
Types and Models
3.1 Facilitative vs Evaluative
Leonard Riskin distinguished between facilitative and evaluative approaches. In facilitative mediation, the mediator assists parties by fostering communication and helping them understand each other's viewpoints. In evaluative mediation, the mediator may assess issues, identify possible solutions, and suggest ways to reach agreement, but without prescribing a specific outcome.
3.2 Other Approaches
Mediation can be evaluative in that the mediator analyzes issues and relevant norms (reality-testing), while refraining from providing prescriptive advice. Models vary between countries with Anglo-Saxon legal traditions and civil law traditions.
| Model | Description | Typical Use |
|---|---|---|
| Facilitative | Mediator fosters communication and understanding | Family, community disputes |
| Evaluative | Mediator assesses issues and suggests options | Commercial, legal disputes |
| Transformative | Focus on empowerment and recognition | Workplace, relationship conflicts |
Process and Stages
4.1 Structure
Mediation has a structure, timetable, and dynamics that ordinary negotiation lacks. The process is private and confidential.
4.2 Typical Stages
While models vary, mediation generally involves opening statements, joint discussion, private caucuses, negotiation, and agreement drafting. Mediators use techniques to open or improve dialogue and empathy between disputants.
4.3 Role of Mediator
The mediator acts as a neutral facilitator and guides parties through the process. The mediator helps parties think outside of the box for possible solutions, broadening the range of possible solutions.
Benefits
5.1 Cost and Time
While a mediator may charge a fee comparable to that of an attorney, the mediation process generally takes much less time than moving a case through standard legal channels. While a case may take months or years, mediation usually achieves resolution in a matter of hours. Taking less time means expending less money.
5.2 Confidentiality
While court hearings are public, mediation remains strictly confidential. No one but the parties and mediator know what happened. In most cases the legal system cannot force a mediator to testify about content or progress.
5.3 Control and Compliance
Mediation increases control parties have over resolution. In court, control resides with judge or jury. Because the result is attained by parties working together and is mutually agreeable, compliance with mediated agreement is usually high. The mediated agreement is fully enforceable in a court of law.
5.4 Additional Advantages
Parties are typically ready to work mutually toward resolution. Mediation encourages negotiation on basis of interests rather than positions. Civil mediation offers a confidential, cost-effective alternative to court, with mediation typically taking a day.
Applications and Uses
6.1 Areas of Use
Mediation is applicable to disputes in many areas. In addition to dispute resolution, mediation can function as a means of dispute prevention, such as facilitating contract negotiation.
- Family: divorce, parenting plans, estates, eldercare
- Workplace: wrongful termination, discrimination, harassment, grievances, labor management
- Commercial: contracts, landlord/tenant, partnerships, personal injury
- Public: environmental, land-use
- Other: school conflicts, victim-offender mediation, non-profit organizations
6.2 Alternative Dispute Resolution Context
Alternative dispute resolution (ADR) encompasses mediation, arbitration, conciliation, and negotiation, offering rapidity, confidentiality, and flexibility. ADR includes mediation, ombudsmen schemes, and arbitration, offering flexibility, speed, and cost savings over traditional litigation.
Standards, Training and Ethics
7.1 Professional Development
Much depends on the mediator's skill and training. Training programs, certifications and licensing have produced trained and professional mediators committed to their discipline.
7.2 Confidentiality and Neutrality
Mediators are bound by confidentiality, with exceptions usually involving child abuse or actual or threatened criminal acts. They must remain neutral and facilitate rather than direct outcomes.
7.3 Community Programs
Community mediation centers help individuals handle disputes outside formal court processes, often using trained volunteer mediators. Many offer services free or at nominal fee and serve as training institutes.
Limitations and Considerations
8.1 Voluntary Nature
Participation is typically voluntary. Success depends on party motivation and willingness to move positions.
8.2 Power Imbalances
Mediation requires careful handling when power imbalances exist. Unlike arbitration, mediator cannot impose binding decisions, which may limit effectiveness if parties cannot agree.
8.3 Legal Context
Mediation is not identical in all countries. Differences exist between mediation in countries with Anglo-Saxon legal traditions and civil law traditions.
Glossary
- Mediation
- A structured dispute resolution process facilitated by a neutral third party.
- Mediator
- Independent neutral who assists parties to negotiate resolution.
- ADR
- Alternative Dispute Resolution, encompassing mediation, arbitration, and negotiation.
- Facilitative Mediation
- Approach where mediator fosters communication without assessing merits.
- Evaluative Mediation
- Approach where mediator analyzes issues and suggests possible solutions.
Frequently Asked Questions
Is mediation legally binding?
No. Mediators do not have authority to make binding decisions. The resolution reflects voluntary agreement, but the mediated agreement is fully enforceable in a court of law once signed.
How long does mediation take?
While court cases may take months or years, mediation usually achieves resolution in a matter of hours. Civil mediation typically takes a day.
Is mediation confidential?
Yes. While court hearings are public, mediation remains strictly confidential. In most cases the legal system cannot force a mediator to testify about content.
What is the difference between mediation and arbitration?
Mediation uses a neutral third party to facilitate negotiation without imposing a decision. Arbitration involves a neutral decision-maker who renders a binding decision.
References
- Wikipedia. Mediation.
- UK Government. A guide to civil mediation.
- Cornell Law School. Alternative Dispute Resolution.
- Harvard Law School Program on Negotiation. What is Alternative Dispute Resolution.
- UK Parliament. Mediation and other alternatives to court.
- Super Lawyers. Difference Between Arbitration and Mediation.
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