What is Mediation?
Mediation is a structured, interactive process where an impartial third party assists disputing parties in resolving conflict using 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 she/he manages 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…”).
Mediation, as used in law, is a form of alternative 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.
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.
What is Mediation
Benefits
The benefits of mediation include:
Cost
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 in the hands of a lawyer or a court may take months or years to resolve, mediation usually achieves a resolution in a matter of hours. Taking less time means expending less money on hourly fees and costs.
What is Mediation
Confidentiality
While court hearings are public, mediation remains strictly confidential. Only the parties to the dispute and the mediator or mediators know what happened. Confidentiality in mediation has such importance that in most cases the legal system cannot force a mediator to testify in court as to the content or progress of mediation. Many mediators destroy their notes taken during a mediation once that mediation has finished. The only exceptions to such strict confidentiality usually involve child abuse or actual or threatened criminal acts.
Control
Mediation increases the control the parties have over the resolution. In a court case, the parties obtain a resolution, but control resides with the judge or jury. Often, a judge or jury cannot legally provide solutions that emerge in mediation. Thus, mediation is more likely to produce a result that is mutually agreeable for the parties.
Compliance
Because the result is attained by the parties working together and is mutually agreeable, compliance with the mediated agreement is usually high. This further reduces costs, because the parties do not have to employ an attorney to force compliance with the agreement. The mediated agreement is, however, fully enforceable in a court of law.
Mutuality
Parties to a mediation are typically ready to work mutually toward a resolution. In most circumstances the mere fact that parties are willing to mediate means that they are ready to “move” their position. The parties thus are more amenable to understanding the other party’s side and work on underlying issues to the dispute. This has the added benefit of often preserving the relationship the parties had before the dispute.
What is Mediation
Support
Mediators are trained in working with difficult situations. The mediator acts as a neutral facilitator and guides the parties through the process. The mediator helps the parties think “outside of the box” for possible solutions to the dispute, broadening the range of possible solutions.
Uses
In addition to dispute resolution, mediation can function as a means of dispute prevention, such as facilitating the process of contract negotiation. Governments can use mediation to inform and to seek input from stakeholders in formulation or fact-seeking aspects of policymaking.
What is Mediation
Mediation is applicable to disputes in many areas:
Family
- Prenuptial / Premarital agreements
- Financial or budget disagreements
- Separation
- Divorce
- Alimony
- Parenting plans (child custody and visitation)
- Eldercare
- Family businesses
- Adult sibling conflicts
- Parent(s)/adult children
- Estates
- Medical ethics and end-of-life
Workplace
- Wrongful termination
- Workers` compensation
- Discrimination
- Harassment
- Grievances
- Labor management
Commercial
- Landlord/tenant
- Homeowners’ associations
- Builders/contractors/realtors/homeowners
- Contracts
- Medical malpractice
- Personal injury
- Partnerships
Public disputes
- Environmental
- Land-use
Other
- School conflicts
- Violence-prevention
- Victim – Offender mediation
- Non-profit organizations
- Faith communities
Process
Roles
Mediator
The mediator’s primary role is to act as a neutral third party who facilitates discussions between the parties. In addition, a mediator serves in an evaluative role when they analyse, assess the issues, and engage in reality-testing. A mediator is neutral and they are not the agent of any party. In their role, mediators do not offer prescriptive advice (e.g., “You should settle this case,” or “Your next offer should be X.”). Mediators also manage the interaction between the parties and encourage constructive communication using specialized communication techniques.
Finally, the mediator should restrict pressure, aggression, and intimidation, demonstrate how to communicate through employing good speaking and listening skills, and paying attention to non-verbal messages and other signals emanating from the context of the mediation and possibly contributing expertise and experience. The mediator should direct the parties to focus on issues and stay away from personal attacks.
Parties
The role of the parties varies 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. Party-directed mediation (PDM) is an emerging approach involving a pre-caucus between the mediator and each of the parties before going into the joint session. The idea is to help the parties improve their interpersonal negotiation skills so that in the joint session they can address each other with little mediator interference.
Authority
One of the general requirements for successful mediation is that those representing the respective parties have full authority to negotiate and settle the dispute.
Preparation
The parties’ first role is to consent to mediation, possibly before preparatory activities commence. Parties then prepare in much the same way they would for other varieties of negotiations. Parties may provide position statements, valuation reports and risk assessment analysis. The mediator may supervise/facilitate their preparation and may require certain preparations.
Disclosure
Agreements to mediate, mediation rules, and court-based referral orders may have disclosure requirements. Mediators may have express or implied powers to direct parties 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, including witness statements, valuations, and statement accounts.
Participation
Mediation requires direct input from the parties. Parties must attend and participate in the mediation meeting. Some mediation rules require parties to attend in person. Participation at one stage may compensate for absence at another stage.
Preparation
Preparatory steps for mediation can vary according to legal and other requirements, not least gaining the willingness of the parties to participate.
Ensure that all participants are ready to discuss the dispute in a reasonably objective fashion. Readiness is improved when disputants consider the viability of various outcomes.
Identify other participants. In addition to the disputants and the mediator, the process may benefit from the presence of counsel, subject-matter experts, interpreters, family, etc.
Meeting
The typical mediation has no formal compulsory elements, although some elements usually occur:
- establishment of ground rules framing the boundaries of mediation
- parties detail their stories
- identification of issues
- identify options
- discuss and analyse solutions
- adjust and refine proposed solutions
- record agreement in writing
Individual mediators vary these steps to match specific circumstances, given that the law does not ordinarily govern mediators’ methods.
Post-mediation activities
Ratification and review
Ratification and review provide safeguards for mediating parties.
In other situations, it may be agreed to have agreements reviewed by lawyers, accountants, or other professional advisers.
The implementation of mediated agreements must comply with the statues and regulations of the governing jurisdiction.
Referrals
Mediators may at their discretion refer one or more parties to psychologists, accountants, social workers, or others for post-mediation professional assistance.
Mediator debriefing
In some situations, a post-mediation debriefing, and feedback session is conducted between co-mediators or between mediators and supervisors. It involves a reflective analysis and evaluation of the process. In many communities’ mediations services debriefing is compulsory and mediators are paid for the debriefing session.
Codes of conduct
Common elements of codes of conduct include:
- informing participants as to the process of mediation
- adopting a neutral stance
- revealing any potential conflicts of interest
- maintaining confidentiality within the bounds of the law
- mindfulness of the psychological and physical wellbeing of all participants
- directing participants to appropriate sources for legal advice
- engaging in ongoing training
- practising only in those fields in which they have expertise.
What is Mediation