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Mediation
 

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Mediation in legal terminology, comprises an act of bringing two states, sides or parties in a dispute closer together toward agreement through alternative dispute resolution, a dialogue in which a (generally) neutral third party, the mediator, using appropriate techniques, assists two or more parties to help them negotiate an agreement, with concrete effects, on a matter of common interest. More generally speaking, the term "mediation" covers any activity in which an impartial third party (often a professional) facilitates an agreement on any matter in the common interest of the parties involved.

Mediation applies to different fields, with some common peculiar elements and some differences for each of its specialties. The main fields of mediation include commerce, legal disputes and diplomacy, but forms of mediation appear in other fields as well. Mediation in marriage technically belongs in the category, although it has followed its own peculiar history since the times of ancient Greeks: compare marriage counselling.

History of dispute mediation

The activity of mediation in itself appeared in very ancient times. Historians presume early cases in Phoenician commerce (but suppose its use in Babylon, too). 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) recognised mediation. The Romans called mediators by a variety of names, including internuncius, medium, intercessor, philantropus, interpolator, conciliator, interlocutor, interpres, and finally mediator.

The Middle Ages regarded mediation differently, sometimes forbidding the practice or restricting its use to centralized authorities. Some cultures regarded the mediator as a sacred figure, worthy of particular respect; and the role partly overlapped with that of traditional wise men.

Common aspects of mediation

Mediation as a process involves a third party (often a neutral 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.

Some few 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:

Public disputes:

  • Environmental
  • Land use

Disputes involving the following issues:

Other:

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 party allowed to explain and detail his/her 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 (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.

Online Mediation

Online mediation, a sub-category of Online Dispute Resolution, is the application of online technology to the process of mediation. GAMA, the Global Arbitration Mediation Association, Inc., www.gama.com, is credited as being the first on-line ADR forum in 1995. Online Mediation extends the reach of mediators to disputes between persons who are too geographically distant,or otherwise(e.g. disability) unable, to attend, or where the value of the dispute does not justify the cost of, a face-to-face mediation.

Online mediation also adds the following benefits to face-to-face mediation:-

• The mediation process can commence almost immediately and without waiting for any meetings, as well as continue in between meeting dates.

• There will be more efficient use of the time in meetings since the mediator will be able to commence the meetings having already clarified the facts, narrowed the issues and ensured the parties approach the meetings in a positive state of mind.

• If the mediation does not succeed during the time limited meetings, but it is felt that the prospects of a resolution are good, the parties can opt to continue online.

• Postponed meetings do not slow the process since the discussions can continue online.

• Time and cost in writing, emailing, faxing and telephoning the various parties and their representatives can be reduced and the whole process of information

• exchange prior to the meeting made more efficient. In particular, any key documents can be uploaded to the online file.

• The online file can be accessed during the meetings, to log proposals and clarify in writing any significant statements. In this way, while the mediator is in private meeting with one party, the other party could be reviewing the observations of the mediator, which may include some suggestions for resolution, as well as any significant statements and/or could be putting in writing any thoughts, or clarifying any information, as requested by the mediator.

• If use has been made of the online file during the pre-mediation phase prior to the meetings, the mediator can access the file to remind himself of relevant issues and facts as explained to him in posted messages.

• An area can be set aside for the anonymised posting of suggested solutions. When one party makes a suggestion, the other party's view of the suggestion is often partly coloured by suspicion of motive. Anonymising the proposal helps focus attention on the proposal itself.

• Those participants who are not able readily to attend all meetings can still participate.

• In business or workplace disputes, senior management can monitor online the progress of mediations in which the company is represented by junior management, who, in turn can seek advice and authorization from senior management within private intra-party areas of the file.

Further information at The Mediation Roomor the GAMA, the Global Arbitration Mediation Association at http://www.gama.com , http://www.arbitration.com , http://www.mediation.com.

Go to http://www.youdrawstraws.com for an on-line, usable (free for non-commercial consumer use) method of using the internet for "drawing straws" to resolve minor disputes (which game to play first, which activity to attend, designated driver selection, which movie to watch, who cleans the toilets).

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 bilateral 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.

Subfields of commercial mediation include work in well-known specialized branches: in finance, in insurance, in ship-brokering, in real estate and in some other individual markets, mediators have specialised designations and usually obey special laws. Generally, mediators cannot practice commerce in the genre of goods in which they work as specialized mediators.

Community Mediation

Disputes involving neighbors often have no formal dispute resolution mechanism. Community mediation centers generally focus on this type of neighborhood conflict, with trained volunteers from the local community usually serving as mediators. These organizations often serve populations that cannot afford to utilize the court systems or other private alternative dispute resolution providers.

Competence of the mediator

Numerous schools of thought exist on identifying the 'competence' of a mediator. Where parties retain mediators to provide an evaluation of the relative strengths and weaknesses of the parties' positions, subject-matter expertise of the issues in dispute becomes a primary aspect in determining 'competence'.

Some would argue, however, that an individual who gives an opinion about the merits or value of a case does not practise true mediation, and that to do so fatally compromises the alleged mediator's neutrality.

Where mediators are expected to be process experts only (i.e., 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 by 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. For searchable databases of mediators, see also GAMA, the Global Arbitration Mediation Association at http://www.gama.com, http://www.mediation.com or http://www.arbitration.com.

Mediation as a method of dispute resolution

In the field to 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 independently 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 the mediator in US practice

Generally, the process consists of the following stages;
  1. an introduction by the mediator that includes establishing ground rules suggested by the mediators and the parties;
  2. the parties' 'telling their stories' in an uninterrupted manner;
  3. the mediator's asking questions to clarify the issues;
  4. the mediator's discovery of the parties' underlying interests/concerns related to the issues;
  5. the parties' generation of options that may resolve the dispute;
  6. the reality-testing of the options, leading to one option that best resolves the issues for all parties; and
  7. memorialization of the resulting agreement in writing.
The mediator has the role of guiding this process.

People have used mediation 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 'mediation/arbitration'. In this process, if parties are unable to reach resolution through mediation, the mediator becomes an arbitrator, shifting the mediation process into an arbitral one, seeking additional evidence as needed (particularly from witnesses, if any, since witnesses are normally not called upon by a mediator), and finally rendering an arbitral decision.

This process is more appropriate in civil matters where rules of evidence or jurisdiction are not in dispute. It resembles, in some respects, criminal plea-bargaining and Confucian judicial procedure, wherein the judge also plays the role of prosecutor - rendering what, in Western European court procedures, would be considered an arbitral (even 'arbitrary') decision.

Mediation/arbitration hybrids can pose significant ethical and process problems for mediators. Many of the options and successes of mediation relate to the mediator's unique role as someone who wields coercive power over neither the parties nor the outcome. If parties in a mediation are aware the mediator might later need to act in the role of judge, the process could be dramatically distorted. Thankfully, mediation-arbitration often involves using different individuals in the role of mediator and (if needed later) arbitrator, but this is not always the case.

Mediator liability

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 United States
Note the differences between the legal definition of civil mediation in the United States of America and mediation in other countries. Compared with the situation elsewhere, mediation appears more 'professionalized' in the United States, where State laws regarding the use of lawyers as opposed to mediators may differ widely. One can best understand these differences in a more global context of variances between countries.

Within the United States, the laws governing mediation vary greatly on a state-by-state basis. Some states have fairly sophisticated laws concerning mediation, including clear expectations for certification, ethical standards, and protections preserving the confidential nature of mediation by ensuring that mediators need not testify in a case they've worked on. 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 practising outside the court system may very well not have these same sorts of legal protections.

Liability insurance is often an option professional mediators consider. It has 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 some people consider that 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 obviously offers a 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.

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 economical 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.

Bibliography

  • Flemisch, Christiane A.: Streitbeilegung im internationalen Geschäft. Einführung in die Mediation als Methode der Streitbeilegung, in Außenwirtschaftliche Praxis (AW-Prax), 2006, Heft 2.
  • Flemisch, Christiane A.: Wirtschaftsmediation im Zeitalter der
Globalisierung – Besonderheiten bei interkulturellen Wirtschaftsmediationen, in IDR, 2006 Heft 1.
  • TK Read, President, GAMA, the Global Arbitration Mediation Association, http://www.gama.com , http://www.mediation.com , http://www.arbitration.com , http://youdrawstraws.com , http://www.tkread.com.

See also

External links

Additional Resources

The City University of New York Dispute Resolution Consortium (CUNY DRC) serves as an intellectual home to dispute-resolution faculty, staff and students at the City University of New York and to the diverse dispute-resolution community in New York City. At the United States' largest urban university system, the CUNY DRC has become a focal point for furthering academic and applied conflict resolution work in one of the world's most diverse cities. The CUNY DRC conducts research and innovative program development, has co-organized countless conferences, sponsored training programs, resolved a wide range of intractable conflicts, published research working papers and a newsletter. It also maintains an extensive database of those interested in dispute resolution in New York City, a website with resources for dispute resolvers in New York City and since 9/11, the CUNY DRC assumed a leadership role for dispute-resolvers in New York City by establishing an extensive electronic mailing list, sponsoring monthly breakfast meetings, conducting research on responses to catastrophes, and managing a public awareness initiative to further the work of dispute resolvers.

Peacemakers Trust, based in Victoria, Canada, is a non-profit organization for research and education in the field of conflict resolution and peacebuilding with an extensive searchable online bibliography.

Dispute resolution | Ethics | Peace | Nonviolence | Legal occupations

Mediace | Mediation | Mediator (patrón de diseño) | Médiation | גישור | Conflictbemiddeling | 調停 | Mediacje

 

This article is licensed under the GNU Free Documentation License. It uses material from the "Mediation".

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