Mediation
Mediation is a negotiation facilitated by a third-party neutral. It is a structured, interactive process where an impartial third party, the mediator, assists disputing parties in resolving conflict through the use of specialized communication and negotiation techniques. All participants in mediation are encouraged to actively participate in the process. Mediation is a "party-centered" process in that it is focused primarily upon the needs, rights, and interests of the parties. The mediator uses a wide variety of techniques to guide the process in a constructive direction and to help the parties find their optimal solution. A mediator is facilitative in that they manage the interaction between parties and facilitates open communication. Mediation is also evaluative in that the mediator analyzes issues and relevant norms ("reality-testing"), while refraining from providing prescriptive advice to the parties (e.g., "You should do..."). Due to its voluntary nature, a person cannot be compelled to use mediation to resolve their dispute. However, a suggestion from the Court may be difficult to resist.[1]
For other uses, see Mediation (disambiguation).
Mediation is a form of dispute resolution resolving disputes between two or more parties with concrete effects. Typically, a third party, the mediator, assists the parties to negotiate a settlement. Disputants may mediate disputes in a variety of domains, such as commercial, legal, diplomatic, workplace, community, and family matters.
The term mediation broadly refers to any instance in which a third party helps others reach an agreement. More specifically, mediation has a structure, timetable, and dynamics that "ordinary" negotiation lacks. The process is private and confidential, possibly enforced by law. Participation is typically voluntary. The mediator acts as a neutral third party and facilitates rather than directs the process. Mediation is becoming a more peaceful and internationally accepted solution to end the conflict. Mediation can be used to resolve disputes of any magnitude.
The term mediation, however, due to language as well as national legal standards and regulations is not identical in content in all countries but rather has specific connotations, and there are some differences between Anglo-Saxon definitions and other countries, especially countries with a civil, statutory law tradition.[2]
Mediators use various techniques to open, or improve, dialogue and empathy between disputants, aiming to help the parties reach an agreement. Much depends on the mediator's skill and training. As the practice gained popularity, training programs, certifications, and licensing followed, which produced trained and professional mediators committed to the discipline.
Process[edit]
Roles[edit]
Mediation is in contrast to the process common in a court of law where advocates engage in contentious litigation on behalf of their clients, arguing before a parental figure such as a judge or arbitrator. Both advocates and arbitrator effectively deprive the disputants of any responsibility for the outcome.by imposing a solution.
During mediation the participants have to take personal responsibility for resolving their issues. The mediator takes no part other than to reduce the emotional temperature and facilitate full and frank exchange of views, "reframing" aggressive or insulting language into a rational, neutral statement of fact.[22]
Mediators[edit]
Education and training[edit]
The educational requirements for accreditation as a mediator differ between accrediting groups and from country to country. In some cases legislation mandates requirements; in others professional bodies impose accreditation standards. Many US universities offer graduate studies in mediation.
Variants[edit]
Evaluative mediation[edit]
Evaluative mediation is focused on providing the parties with an evaluation of their case and directing them toward settlement. During an evaluative mediation process, when the parties agree that the mediator should do so, the mediator will express a view on what might be a fair or reasonable settlement. The Evaluative mediator has somewhat of an advisory role in that he/she evaluates the strengths and weaknesses of each side's argument and make some predictions about what would happen should they go to court. Facilitative and transformative mediators do not evaluate arguments or direct the parties to a particular settlement.
In Germany, due to national regulation "evaluative mediation" is seen as an oxymoron and not allowed by the German mediation Act. Therefore, in Germany mediation is purly facilitative.[45] In Australia, the industry accepted definition of mediation involves a mediator adopting a non advisory and non determinative approach. However, there is also provision under the National Mediator Accreditation Standards for mediators to offer a 'blended' approach provided that participants consent to such a process in writing, the mediator is appropriately insured and has the expertise required.[46]
Facilitative mediation[edit]
Facilitative mediators typically do not evaluate a case or direct the parties to a particular settlement. Instead, the Facilitative mediator facilitates the conversation. These mediators act as guardian of the process, not the content or the outcome. During a facilitative mediation session the parties in dispute control both what will be discussed and how their issues will be resolved. Unlike the transformative mediator, the facilitative mediator is focused on helping the parties find a resolution to their dispute and to that end, the facilitative mediator provides a structure and agenda for the discussion.
Philosophy[edit]
Conflict prevention[edit]
Mediation can anticipate difficulties between parties before conflict emerges. Complaint handling and management is a conflict prevention mechanism designed to handle a complaint effectively at first contact, minimising the possibility of a dispute. One term for this role is "dispute preventer".[61]
Confidentiality[edit]
One of the hallmarks of mediation is that the process is strictly confidential. Two competing principles affect confidentiality. One principle encourages confidentiality to encourage people to participate, while the second principle states that all related facts should be available to courts.
The mediator must inform the parties of their responsibility for confidentiality.
Steps put in place during mediation to help ensure this privacy include:
Principles[edit]
Principles of mediation include non-adversarialism, responsiveness, self-determination and party autonomy.
Non-adversarialism is based on the actual process of mediation. It treats the parties as collaborating in the construction of an agreement. By contrast, litigation is explicitly adversarial in that each party attempts to subject the other to its views. Mediation is designed to conclude with an agreement rather than a winner and loser.
Responsiveness reflects the intent to allow the parties to craft a resolution outside of the strict rules of the legal system. A responsive mediation process also is informal, flexible and collaborative.
Self-determination and party autonomy allow and require parties to choose the area of agreement, rather than ceding the decision to an outside decision-maker such as a judge. This turns the responsibility for the outcome onto the parties themselves.
In the United States, mediator codes-of-conduct emphasize "client-directed" solutions rather than imposed solutions. This has become a common, definitive feature of mediation in the US and UK.
Ethics[edit]
Theorists, notably Rushworth Kidder, who founded the Institute for Global Ethics in 1980, claimed that mediation is the foundation of a 'postmodern' ethics—and that it sidesteps traditional ethical issues with pre-defined limits of morality.[70]
Mediation can also be seen as a form of harm reduction or de-escalation, especially in its large-scale application in peace and similar negotiations, or the bottom-up way it is performed in the peace movement where it is often called mindful mediation. This form derived from methods of Quakers in particular.[71]
Conflict management[edit]
Society perceives conflict as something that one should resolve as quickly as possible.[72] Mediators see conflict as a fact of life that when properly managed can benefit the parties.[20][72][73] The benefits of conflict include the opportunity to renew relationships and make positive changes for the future.[74]