Mediation is a process of alternative dispute resolution in which a neutral third party, the mediator, assists two or more parties in order to help them negotiate an agreement, with concrete effects, on a matter of common interest; lato sensu is any activity in which an agreement on whatever matter is researched by an impartial third party, usually a professional, in the common interest of the parties.
Mediation applies to different fields, with some common peculiar elements and some differences for each of its specialties. The main fields of application of mediation are business commerce, legal dispute and diplomacy, but minor forms can be found in other fields too. The mediation in marriages is technically admitted in the category, even if it follows its own history since the times of ancient Greeks.
The activity in itself is indeed very ancient, presumably started with Phoenician commerce (but it has been supposed it was in use in Babylon too), and developed in Greece (where the mediator is called proxenetas - not in the sense of marriage mediator), then in Roman civilisation, where mediation is recognised in Roman law starting from Justinian's Digest . In Rome the mediator was called with a variety of names, among which internuncius , medium , intercessor , philantropus , interpolator , conciliator , interlocutor , interpres , and finally mediator . During the Middle Ages, mediation has been differently considered, sometimes forbidden, or its practice has been restricted to centralised authorities. In some cultures it was instead a sacred figure, tributed a particular respect, partly coincident with that of traditional wise men.
Common aspects of Mediation
Mediation is a process in which a neutral third party assists two or more persons find mutually-agreeable solutions to difficult problems.
Mediation is employed at all levels and contexts, from minor disputes to global peace talks. It is thus difficult to provide a general description without referring to the practice in specific jurisdictions - where "Mediation" may in fact be formally defined and in some venues require specific licenses. This article attempts to be only a broad introduction, with more specific processes (such as peace process or binding arbitration or mindful mediation) referred to 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, members of the mediation profession believe it important for a mediator to have thorough training, competancy, and continuing education.
Types of disputes or decision-making that are often mediated include the following (although its use is not limited to these areas):
- Prenuptial agreements
- Financial or budget disagreements
- 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
- Wrongful termination
- Land use
Disputes involving the following issues:
- Homeowners' associations
- Contracts of any kind
- Medical malpractice
- Personal injury
- Non-profit organizations
- Faith communities
- 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 being made by the neutral 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 and neutral third person.
In the United States, mediator codes of conduct emphasize that any solutions be "client-directed" rather than being imposed by the mediator in any way, and this is a common defining featue of mediation in the US and 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 are usually found:
- Each party having a chance to tell his or her story;
- Identification of issues, usually by the mediator;
- The clarification and detailed specification of the 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 accessory aspects,
- memorializing the agreements into a written draft
Due to the particular character of this activity, each mediator uses a method of his or her own (a mediator's methods are not ordinarily governed by law), 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.
Mediation in Business and in 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 generical contreposition that includes all the possible varieties of the exchange of goods or rights) something at satisfactory conditions (typically in the aim of producing a synallagmatic contract), harmonically bringing the separate elements of the treaty to a respectively balanced equilibrium. The mediator, in the 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.
This activity is sometimes scholastically included among those of 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.
The subfields include specialised branches that are very well commonly known: in finance, in insurances, in ship-brokering, in real estate and in some other particular markets, mediators have an own name and usually obey to special laws. Generally the mediator cannot practice commerce in the genre of goods in which he is a specialised mediator.
Competence of mediator
There are numerous schools of thought relative to identifying the "competence" of a mediator. Where mediators are retained by parties to provide an evaluation of the relative strengths and weaknesses of the parties, subject matter expertise of the issues in dispute is a primary aspect in determining "competence."
Where mediators are expected to be process experts only, that is having been employed to use their skills to work through the mediation process without offering evaluations as to the parties' claims, competence is usually demonstrated in the ability to remain neutral and to move parties though various impasse points in a dispute. International professional organizations continue to debate what "competency" means. Current information can be obtained from professional associations such as the Association for Conflict Resolution.
Mediation as a method of dispute resolution
In the field ot resolving legal controversies, mediation is an informal method of dispute resolution in which a neutral third party, the mediator, attempts to assist the parties in finding resolution to their problem through the mediation process. Although mediation has no legal standing per se , agreements between the parties can (usually with assistance from legal counsel) be committed to writing and signed, thus rendering a legally binding contract in some jurisdiction specified therein.
Mediation differs from most other conflict resolution processes by virtue of its simplicity, and the clarity of its rules. It is employed at all scales from petty civil disputes to global peace talks. It is thus difficult to characterize it independent of these scales or specific jurisdictions - where "Mediation" may in fact be formally defined and may in fact require specific licenses. There are more specific processes (such as peace process or binding arbitration or mindful mediation) referred to directly in the text.
Safety, fairness, closure
These broader political methods usually focus on conciliation, preventing future problems rather than on focused dispute resolution of one matter.
Mediation can be reasonably seen as the simplest of many such processes, where there is no great dispute about political context, jurisdiction has been agreed, whatever process selected the mediator is not in doubt, and there is no great fear that safety, fairness and closure guarantees will be violated by future bad-faith actions.
If some warranty of safety, fairness, and closure can be assumed, then the process can reasonably be called "mediation proper" and be described thus:
Process and role of mediator, in US practice
Generally, the process consists of the following stages; (a) an introduction by the mediator that includes establishing ground rules suggested by the mediators and the parties; (b) the parties' "telling their stories" in an uninterrupted manner; (c) the mediator's asking questions to clarify the issues; (d) the parties' generation of options that may resolve the dispute; (e) the reality-testing of the options, leading to one option that best resolves the issues for all parties; and (f) memorialization of the resulting agreement in writing. The role of the mediator is to guide this process.
Mediation has been used extensively in virtually every type of conflict situation, ranging from commercial and family cases, to criminal matters involving juvenile and adult offenders meeting with victims to negotiate restitution. Mediation is increasingly ordered by judges in court cases where a collaborative approach to resolving a conflict is viewed as advantageous to the traditional adversarial process. In family cases, setting parties on a path of collaborative problem-solving is viewed as superior to traditional approaches where children, in particular, are harmed by the effects of protracted litigation.
Mediation with arbitration
Mediation has sometimes been utilized to good effect when coupled with arbitration, particularly binding arbitration, in a process called, appropriately enough, "mediation/arbitration." In this process, if the parties are unable to reach resolution through mediation, the mediator becomes an arbitrator, shifts the mediation process into an arbitral one, seeks any additional evidence needed (particularly witnesses, if any, since witnesses would not normally be called in a mediation), and renders an arbitral decision.
This process is more appropriate in civil matters where rules of evidence or jurisdiction are not disputed. It resembles in some respects criminal plea-bargaining and Confucian judicial procedure, wherein the judge also plays the role of prosecutor - and renders what in Western European court procedures would be considered an arbitral (even "arbitrary") decision.
It's important to remember this such mediation/arbitration hybrid can pose significant ethical and process problems for a mediator. Many of the options and successes of mediation relate to the mediator's unique role as someone who does not have coercive power over the parties and outcome. If parties in a mediation are aware that the mediator might later in time need to turn around and act in the role of judge, it can dramatically distort the process. Thankfully, mediation-arbitration often involves using different individuals in the role of mediator and (if needed later) arbitrator, but this is still not always the case.
Liability of mediator
The role of mediator is less controversial than the role of judge, if only because a mediator may only propose, rather than impose, a contract.
The assumed moral or legal responsibility, or even liability, of the mediator differs drastically in different methods - for instance, in global political negotiations, it is often difficult to find anyone who is sufficiently trusted by both sides to even get a peace process to begin. Accordingly, liability is not assigned to the mediator no matter how badly things go wrong - doing so would discourage future efforts to help.
Liability in the U.S.A.
Differences between the legal definition of civil Mediation in the United States and Mediation in other countries are worth noting, as it is more "professionalized" in the United States, where state laws regarding use of lawyers versus mediators may differ widely. These differences are best understood in a more global context of variances between countries.
Even within the United States, the laws governing mediation varies greatly on a state-by-state basis. Some states have fairly sophisticated laws concerning mediation, incluidng clear expectations for certification, ethical standards, and protections that ensure a mediator not be called to testify in a case they've worked on (preserving the confidential nature of mediation). However, even in states that have such developed laws around mediation, that law only relates to mediators working within the court system. Community and commercial mediators practicing outside the court system may very well not have these same sorts of legal protections.
Liability insurance is often an option that professional mediators consider. It's traditionally been marketed through professional dispute resolution organizations.
Mediation in politics and in diplomacy
Mediation is typically one of the most important activities of diplomats, and it is considered it should be a relevant quality of democratic politicians, given that usually in both these fields the explicitation of the respective mansions (on a formal basis, at least) require the achievement of agreements between separate entities of which the diplomat or the politician are "third" parties by definition ( Hobbes and Bodin found that the organs of a state have a mediating power and function).
These activities are usually performed in order to get, on the subjective point of view of this mediator, a recompense that might be in the form of a direct economical advantage, a political advantage, an increased international prestige or influence.
One of many non-violent methods of dispute resolution
In politics and in diplomacy, mediation is an obviously non-violent method of dispute resolution (some indeed argue that other methods would be many), although it is usually assumed or included in definitions of other methods.
Some theorists, notably Rushworth Kidder, have claimed that mediation is the foundation of a new (some say " postmodern") ethics - and that it sidesteps traditional ethical issues with pre-defined limits of morality.
Others claim that mediation is a form of harms reduction or de-escalation, especially in its large-scale application in peace process and similar negotiation, or the bottom-up way it is performed in the peace movement where it is often called mindful mediation. In this form, it would be derived from methods of Quakers in particular.
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 is rising 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 that 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 notoriety 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.
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.
On a more technical point of view, however, it has to be recalled 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).
On a more general point, given that mediation ordinarily produces agreements containing elements to enforce the pacts with facts that can grant its effectiveness, it has to be noted that the legal system is not the only means that will ensure protection to the pacts: modern mediation frequently tends to define economical compensations and warranties too, generally considered of more quick and efficacy. 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.
Wikipedia article (the free online encyclopedia) reproduced under the terms of the GNU (General Public License) Free Documentation License.