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|Alternative Dispute Resolution|
Lawyer supported mediation
Mediation, as used in law, is a form of alternative dispute resolution (ADR), a way of resolving disputes between two or more parties. A third party, the mediator, assists the parties to negotiate their own settlement (facilitative mediation). In some cases, mediators may express a view on what might be a fair or reasonable settlement, generally where all the parties agree that the mediator may do so (evaluative mediation).
Mediation has a structure, timetable and dynamics that “ordinary” negotiation lacks. The process is private and confidential. The presence of a mediator is the key distinguishing feature of the process. There may be no obligation to go to mediation, but in some cases, any settlement agreement signed by the parties to a dispute will be binding on them.
Mediators use various techniques to open, or improve, dialogue between disputants, aiming to help the parties reach an agreement (with concrete effects) on the disputed matter. Much depends on the mediator’s skill and training. The mediator must be wholly impartial. Disputants may use mediation in a variety of disputes, such as commercial, legal, diplomatic, workplace, community and family matters. A third-party representative may contract and mediate between (say) unions and corporations. When a workers’ union goes on strike, a dispute takes place, the parties may agree to a third party to settle a contract or agreement between the union and the corporation.
History of 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 fromJustinian‘s Digest of 530 – 533 CE) recognized mediation. The Romans called mediators by a variety of names, including internuncius, medium, intercessor,philantropus, interpolator, conciliator, interlocutor, interpres, and finally mediator.
Some cultures regarded the mediator as a sacred figure, worthy of particular respect; and the role partly overlapped with that of traditional wise men or tribal chief. Members of peaceful communities frequently brought disputes before local leaders or wise men to resolve local conflicts. This peaceful method of resolving conflicts was particularly prevalent in communities of Confucians and Buddists.
Mediation and conciliation
“Conciliation” sometimes serves as an umbrella-term that covers all mediation and facilitative and advisory dispute-resolution processes. Neither process determines an outcome, and both share many similarities. For example, both processes involve a neutral third-party who has no enforcing powers.
One significant difference between conciliation and mediation lies in the fact that conciliators possess expert knowledge of the domain in which they conciliate. The conciliator can make suggestions for settlement terms and can give advice on the subject-matter. Conciliators may also use their role to actively encourage the parties to come to a resolution. In certain types of dispute the conciliator has a duty to provide legal information. This helps any agreement reached to comply with any relevant statutory framework pertaining to the dispute. Therefore conciliation may include an advisory aspect.
Mediation works purely facilitative: the practitioner has no advisory role. Instead, a mediator seeks to help parties to develop a shared understanding of the conflict and to work toward building a practical and lasting resolution.
Several different styles of mediation exist: evaluative, facilitative, and transformative. Evaluative mediation has somewhat of an advisory role in that its practitioners evaluate the strengths and weaknesses of each side’s argument should they go to court; whereas facilitative mediators and transformative mediators do not do this.
Furthermore, the definitions of mediation used by the different styles of mediation differ in that evaluative mediation has the main drive and goal of settlement, while transformative mediation, in contrast, looks at conflict as a crisis in communication and seeks to help resolve the conflict, thereby allowing people to feelempowered in themselves and better about each other. The agreement that arises from this type of mediation occurs as a natural outcome of the resolution of conflict.
Both mediation and conciliation serve to identify the disputed issues and to generate options that help disputants reach a mutually-satisfactory resolution. They both offer relatively flexible processes; and any settlement reached should have the agreement of all parties. This contrasts with litigation, which normally settles the dispute in favour of the party with the strongest legal argument. In-between the two operates collaborative law, which uses a facilitative process where each party has counsel.
Mediation and Counselling A counsellor generally uses therapeutic techniques. Some – such as a particular line of questioning – may be useful in mediation. But the role of the counsellor differs from the role of the mediator. The list below is not exhaustive but it gives an indication of important distinctions between the work of mediators and counsellors.
- A mediator aims for clear agreement between the participants as to how they will deal with specific issues. A counsellor is more concerned with the parties gaining a better self-understanding of their individual behaviour
- A mediator, while acknowledging a person’s feelings, does not explore them in any depth. A counsellor is fundamentally concerned about how people feel about a range of relevant experiences
- A mediator is focused upon how people would like to see things in the future rather than a detailed analysis of past events. A counsellor may find it necessary to explore a person’s past in detail to bring out into the open the origins and the patterns of a person’s beliefs and behaviour
- A mediator controls the process but does not overtly try to influence the participants or the actual outcome. A counsellor often takes an intentional role in the process, seeking to influence the parties to move in a particular direction or look at certain issues
- A mediator relies on both parties being present so they can negotiate, usually face-to-face. A counsellor does not necessarily see both parties at the same time.
- A mediator is required to be neutral. A counsellor may play a more supportive role, where appropriate.
- Mediation requires both parties to be willing to negotiate. Counselling may work with one party even if the other is not ready or willing for change.
- Mediation is a structured process that is usually restricted to one or a few sessions. Counselling tends to be more ongoing, depending upon a person’s needs and progress.
Why choose mediation
Several reasons exist for choosing mediation over other channels of dispute resolution (such as those involving attorneys and courts).
- Parties to a dispute may choose mediation as (often) a less expensive route to follow for dispute resolution. 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 filed in court may take months or even years to resolve, a case in mediation usually achieves a resolution in a matter of hours. Taking less time means expending less money on hourly fees and costs.
- Mediation offers a confidential process. While court hearings of cases happen in public, whatever happens in mediation remains strictly confidential. No one but the parties to the dispute and the mediator(s) know what has gone on in the mediation forum. In fact, 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 actually 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.
- Mediation offers multiple and flexible possibilities for resolving a dispute and for the control the parties have over the resolution. In a case filed in court, the parties will obtain a resolution, but a resolution thrust upon the parties by the judge or jury. The result probably will leave neither party to the dispute totally happy. In mediation, on the other hand, the parties have control over the resolution, and the resolution can be unique to the dispute. Often, solutions developed by the parties are ones that a judge or jury could not provide. Thus, mediation is more likely to produce a result that is mutually agreeable, or win/win, for the parties. And because the result is attained by the parties working together and is mutually agreeable, the compliance with the mediated agreement is usually high. This also results in less costs, because the parties do not have to seek out the aid of an attorney to force compliance with the agreement. The mediated agreement is, however, fully enforceable in a court of law.
- The mediation process consists of a mutual endeavor. Unlike in negotiations (where parties are often entrenched in their positions), parties to a mediation usually seek out mediation because they are ready to work toward a resolution to their dispute. The mere fact that parties are willing to mediate in most circumstances means that they are ready to “move” their position. Since both parties are willing to work toward resolving the case, they are more likely to work with one another than against one another. The parties thus are 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.
- Finally, but certainly not least, and as mentioned earlier in this article, the mediation takes place with the aid of a mediator who is a neutral third party. A good mediator is trained in conflict resolution and in working with difficult situations. The good mediator is likely to work as much with the emotional aspects and relationship aspects of a case as he or she is to work on the “topical” issues of the matter. The mediator, as a neutral, gives no legal advice, but guides the parties through the problem solving process. The mediator may or may not suggest alternative solutions to the dispute. Whether he or she offers advice or not, the trained mediator helps the parties think “outside of the box” for possible solutions to the dispute, thus enabling the parties to find the avenue to dispute resolution that suits them best.
Early neutral evaluation and mediation
The technique of early neutral evaluation (ENE) provides early focus in complex commercial disputes, and — based on that focus — offers a basis for sensible case-management or a suggested resolution of the entire case in its very early stages.
In early neutral evaluation, an evaluator acts as a neutral person to assess the strengths and weaknesses of each of the parties and to discuss the same with parties jointly or in caucuses, so that parties gain awareness (via independent evaluation) of the merits of their case. In the case of mediation, solutions normally emerge from the parties themselves and mediators endeavour to find the most acceptable solution by bridging gaps between the parties.
Parties generally call on a senior counsel or on a panel with expertise and experience in the subject-matter under dispute in order to conduct ENE. One refers to such persons as “evaluators” or as “neutral persons”.
Mediator education and training
Suitable education and training for mediators becomes a complex issue — largely due to the breadth of areas which may call on mediation as a means of dispute-resolution. Debate ensues on what constitutes adequate training on the principles of mediation as well as what personal attributes an individual needs in order to effectively carry out a mediator’s role.
The educational requirements for accreditation as a mediator differ between accrediting groups and from country to country. In some cases legislation mandates these requirements; while in others professional bodies impose standards and applicants must comply prior to becoming accredited by them. Many US universities offer graduate studies in mediation, culminating in the PhD or DMed degrees.
In Australia, for example, professionals wanting to practice in the area of family law must have tertiary qualifications in law or in social science, undertake 5 days training in mediation and engage in at least 10 hours of supervised mediation. Furthermore, they must also undertake 12 hours of mediation-education or training every 12 months.
Other institutions offer units in mediation across a number of disciplines such as law, social science, business and the humanities. In Australia not all fields of mediation-work require academic qualifications, as some deal more with practical skills rather than with theoretical knowledge: to this end membership-organizations provide training-courses to further the adoption and practice of mediation. Internationally a similar approach to the training of mediators is taken by organizations such as the Centre for Effective Dispute Resolution.
There are no legislated national or international standards on the level of education that apply to all mediation practitioner’s organizations. However, organizations such as the National Alternative Dispute Resolution Advisory Council (NADRAC) in Australia continue to advocate for a wide scope on such issues. Other systems apply in other jurisdictions such as Germany, which advocates a higher level of educational qualification for practitioners of mediation.
Mediator codes of conduct
The application of a code of conduct to the practice of mediation becomes problematic — due in part to the diverse number and type of practitioners in the field. A tendency exists for professional societies to develop their own codes of conduct, which apply to their own members. Examples of this in Australia include the mediation codes of conduct developed by the Law Societies of South Australia and Western Australia and those developed by organisations such as Institute of Arbitrators & Mediators Australia (IAMA) and LEADR for use by their members. Other organizations such as the American Center for Conflict Resolution Institute ([www.accri.org]) have developed both classroom and distance learning courses which subscribe to its mission of promoting peace through education. The CPR/Georgetown Ethics Commission (www.cpradr.org), the Mediation Forum of the Union International des Avocats, and the European Commission have also promulgated codes of conduct for mediators.
Writers in the field of mediation normally espouse a code of conduct that mirrors the underlying principles of the mediation process. In this respect some of the most common aspects of a mediator codes of conduct include:
- a commitment to inform participants as to the process of mediation.
- the need to adopt a neutral stance towards all parties to the mediation, revealing any potential conflicts of interest.
- the requirement for a mediator to conduct the mediation in an impartial manner
- within the bounds of the legal framework under which the mediation is undertaken any information gained by the mediators should be treated as confidential.
- mediators should be mindful of the psychological and physical wellbeing of all the mediations participants.
- mediators should not offer legal advice, rather they should direct participants to appropriate sources for the provision of any advice they might need.
- mediators should seek to maintain their skills by engaging in ongoing training in the mediation process.
- mediators should practise only in those fields in which they have expertise gained by their own experience or training.
In France, professional mediators have created an organization to develop a rational approach to conflict resolution. This approach is based on a scientific definition of a person and a conflict. It helps to develop a structured process of mediation interviews and meetings of the parties. Technology mediators are particularly advanced in terms of accompanying changes induced by the dynamics of conflict. Mediators have adopted a code of ethics which provides the protagonists guarantees professionalism
Accreditation of ADR in Australia
The National Mediator Accreditation System (NMAS) commenced operation on 1 January 2008. It is an industry based scheme which relies on voluntary compliance by mediator organisations that agree to accredit mediators in accordance with the requisite standards.
ADR practitioners recognize that mediators (as distinct from arbitrators or conciliators) need to be recognized as having professional accreditations the most. There are a range of organizations within Australia that do have extensive and comprehensive accreditations for mediators but people that use mediation are unsure as to what level of accreditation is required for the quality of service that they receive. Standards will tend to vary according to the specific mediation and the level of specificity that is desired. Due to the wide range of ADR processes that are conducted it would be very difficult to have a set of standards that could apply to all ADR processes, but standards should be developed for particular ADR processes
Clients need the assurance that mediators have some form of ongoing assessment and training throughout their careers. Mediators must satisfy different criteria to be eligible for a variety of mediator panels. Also different mediator organizations have different ideals of what makes a good mediator which in turn reflects the training and accreditation of that particular organization. Selection processes for ADR practitioners are based on the needs of the service, but a problem is posed when organizations, such as the court want to refer a client to mediation and they usually have to rely on their in-house mediators or rely on word of mouth. There are inconsistent standards. A national accreditation system could very well enhance the quality and ethics of mediation and lead mediation to become more accountable. There is a need for a unified accreditation system for mediators across Australia to establish clarity and consistency.
- Boulle, L. (2005). Mediation: Principles Processes Practices. LexisNexis Butterworths. p 348.
Uses of mediation
One core problem in the dispute-resolution process involves the determination of what the parties actually dispute. Through the process of mediation participants can agree to the scope of the dispute or issues requiring resolution. Examples of this use of mediation in the Australian jurisdiction include narrowing the scope of legal pleadings and its use in industrial and environmental disputes.
Definition of the nature of a dispute can often clarify the process of determining what method will best suit its resolution.
One of the primary uses of mediation involves parties using the mediation process to define the issues, develop options and achieve a mutually-agreed resolution.
Australia has incorporated mediation extensively into the dispute-settlement process of family law and into the latest round of reforms concerning industrial relations under the WorkChoices amendments to the Workplace Relations Act.
Where prospects exist of an ongoing disputation between parties brought on by irreconcilable differences (stemming from such things as a clash of religious or cultural beliefs), mediation can serve as a mechanism to foster communication and interaction.
Mediation can function not only as a tool for dispute resolution but also as a means of dispute prevention. Mediation can be used to facilitate the process of contract negotiation by the identification of mutual interests and the promotion of effective communication between the two parties. Examples of this use of mediation can be seen in recent enterprise bargaining negotiations within Australia.
Governments can also use mediation to inform and to seek input from stakeholders in formulation or fact-seeking aspects of policy-making. Mediation in wider aspect can also serve to prevent conflict or to develop mechanisms to address conflicts as they arise.
Native-title mediation in Australia
In response to the Mabo decision by the High Court of Australia, the Australian Government sought to alleviate the concerns of a wide section of the population and industry on the decisions implications on land tenure and use by enacting the Native Title Act 1993 (Cth). A cornerstone of the act is the use of mediation as a mechanism to determine future native title rights within Australia.
Although not barring litigation, the Act seeks to promote mediation through a process incorporating the Federal Court and the National Native Title Tribunal(NNTT). This is seen as having better long term success by providing flexible and practical solutions to the needs of the various stakeholders.
The extensive use of mediation in the resolution of native title matters does not stop the referral of matters to the courts for resolution, nor is mediation precluded from occurring whilst legal challenges are being pursued. A recent case where Native Title rights were found exist over a large portion of the City of Perth has seen the simultaneous use of mediation and formal legal appeals processes.
A key feature of Native Title mediation involves the use of Indigenous Land Use Agreements (ILUAs). These binding agreements are negotiated between native title claimant groups and others such as pastoralists, miners and local governments and cover aspects of the use of the land and any future act such as the granting of mining leases.
Some of the features of native title mediation which distinguish it from other forms include the likelihood of lengthy negotiation time frames, the number of parties (ranging on occasion into the hundreds) and that statutory and case law prescriptions constrain some aspects of the negotiations.
Mediation in South Africa
(There is a full set of references for this article. These will be added shortly)
Since the early 1980s a number of institutions have championed the progress of mediation. The Independent Mediation Service of South Africa (IMSSA) was established in 1984 to replace the existing and discredited mechanisms. It trained mediators who then worked through Local Dispute Resolution Committees set up as part of the National Peace Accord. The initial training of mediators was undertaken by ACAS, despite the United Kingdom’s relatively slow progress in developing its own mediation programs. The IMSSA covers all potential areas of mediation within unionised environments, whereas the more recently created Commission for Conciliation, Mediation and Arbitration (CCMA) was formed as result of the Labour Relation Act No 66 1995, and replaced the Industrial Courts in handling large areas of employment disputes. These organisations ensure that mediation in all fields is underpinned by a thorough understanding of negotiation theory.
Additionally, there are developments, supportive of mediation, where non-formal processes that engage a community in more holistic solution-finding, are growing.
As is probably to be expected, there were concerns of the neutrality of mediators, for which the notion of a ‘process advocate’ has been successful in showing that process of mediation will lead to an agreement that both meets the parties needs and those of justice and fairness. This is helpful to remember when discussing concerns about the neutrality of the mediator.
Mediation in South Africa has also benefited from legal support for the process. Since 1995, it has been a legal right to take an employment dispute to conciliation/mediation. Additionally, mediation agreements are binding in law, with a high rate of compliance. The process has grown from generally covering collective agreements such as for wages or terms and conditions, to encompass more rights-based matters usually dismissal.
This legal support, coupled with the will to find mutually beneficial outcomes, has helped mediation to be successful. This success has subsequently encouraged more parties to pursue this approach. This has been particularly noticeable in tackling serious and deep-seated conflict, as well becoming as the foundation for relationship building.
That said, it cannot be taken as read that mediation has been unequivocally successful, as a case in a Southern Cape town illustrated. Here there was a threatened dispute by the municipal workers of 2 separate unions. A mediation that produced a result but did not restore relationships led to a further, more troublesome, breakdown. This highlights importance of ensuring that a mediation is not concluded when only a superficial agreement has been reached.
Mediation has also grown in South Africa because it hasn’t limited itself to a single form of the process. In fact, in order to offer as full a range of options as possible to parties the service has expanded to include Med/Arb, Con/Arb and Arb/Med. It has also benefited from CCMAs target of preventing disputes through:
• encouraging parties away from positional bargaining
• discussions with organisation that appear to be bringing large numbers of cases forward
• general awareness sessions, and
• ensuring, literally that the mediator can speak the language of the parties.
In analysing the success of workplace mediation, it would be easy to use the South African experience as an example of how effective a tool for social engineering mediation can be. However, it should be noted that the success was due in part to the removal of untrusted institutions and the creation of organisations specifically to promote the mediation approach. In a distrusting environment, it has been shown that mediation offers a way of levelling the playing field, equalising the power of the parties involved. The realisation in the 60s that the armed struggle would realise unacceptably high costs brought the sides to the negotiating table to begin a long process of trust building that began its transformation. It also draws, more importantly, on the way in which communities are subsequently developing means of resolving their disputes. In South Africa, the success of mediation in one area has had knock on effects in other areas. This is yet to be the case in the UK, though the lessons of establishing government backed, yet independent, organisations to promote and deliver mediation, as well as enacting legislation that is supportive of these institutions and processes, are ones that could benefit the UK.
Philosophy of mediation
The uses of mediation in preventing conflicts
Mediation is adaptable to anticipate problems, grievances and difficulties between parties before the conflict may arise. This has potential applications in large and private sector organisations, particularly where they are subject to excessive change, competition and economic pressure. A key way mediation is used to prevent these conflicts is complaint handling and management. This is a conflict prevention mechanism designed to handle a complaint effectively at first contact and to minimise the possibility of it developing into a dispute. According to Charlton (2000, p. 4) a person who undertakes this role is commonly known as a “dispute preventer”.
While the corporate sector may provide one area in which to use the mediation process for preventing conflicts, dealing with everyday life’s disputes provides another. This is no more evident in neighbourhood conflict. One’s behaviour affects one’s neighbours, just as what they do affect you. The key way to prevent conflicts with neighbours is to behave as a good neighbour oneself. Spencer and Altobelli (2005, p. 17) believe simple consideration and conversation with neighbours helps achieve a peaceful coexistence, making it easier for you to live as privately or as sociably as you wish. Ideal suggestions for consideration in preventing conflicts between neighbours include:
- meeting one’s neighbors
- keeping one’s neighbors informed
- awareness of differences
- consideration of one’s neighbors’ points of view
- showing candidness
- demonstrating respect
One can also employ mediation to reduce or prevent violence in sports and in schools, using peers as mediators in a process known as peer mediation. This process (highlighted by Cremin) provides a way of handling conflicts and preventing violence in primary schools and high schools. Schools adopting this process often recruit and train students interested in being peer mediators. Peace Pals, developed by Rita Schellenberg, a professional school counselor, is a peer mediation program used in the schools. Peace Pals was studied over a 5-year period and revealed several positive outcomes including a reduction in school-wide violence (Schellenberg, Parks-Savage, & Rehfuss, 2007).
In general, effective communication provides the ideal way to prevent and resolve any conflict; talking things over — along with listening — handles problems optimally and should[original research?] ultimately avoid the dispute going to the courts.
Responsibilities regarding confidentiality in mediation
One of the hallmarks of mediation is that the process is strictly confidential. The mediator must inform the parties that communications between them during the intake discussions and the mediation process are to be private and confidential. In general, the information discussed can never be used as evidence in the event that the matter does not settle at mediation and proceeds to a court hearing. Spencer and Altobelli (2005, p. 261) point out it is considered common for parties entering into mediation to sign a mediation agreement document with the mediator. The parties therefore agree that it’s a condition of being present or participating in the mediation and the document if necessary may be deemed confidential by virtue of the common law.
Confidentiality lies at the heart of mediation. It is imperative for parties to trust the process. Very few mediations will ever succeed unless the parties can communicate fully and openly without fear of compromising their case before the courts. Charlton and Dewdney (2004, p. 344.) highlight mediation confidentiality is seen as one of the key ingredients to encourage disputing parties to negotiate with each other in order to achieve a settlement of their dispute.
Organisations have often seen confidentiality as a reason to use mediation ahead of litigation, particularly when disputes arise in sensitive areas of their operation, or to avoid their affairs becoming publicised among business competitors, acquaintances or friends. Steps put in place during mediation to help ensure this privacy include;
- The mediation meeting is conducted behind closed doors.
- Outsiders can only observe proceedings with both parties consent.
- No recording of the transcript is kept; and
- There is no external publicity on what transpired at the mediation.
There is no doubt confidentiality contributes to the success and integrity of the mediation process. However it will be difficult for a mediator to guarantee full confidentiality protection between the parties.
Legal implications of mediated agreements
Parties who enter into mediation do not forfeit any legal rights or remedies. If the mediation process does not result in settlement, each side can continue to enforce their rights through appropriate court or tribunal procedures. However, if a settlement has been reached through mediation, legal rights and obligations are affected in differing degrees. In some situations, the parties may only wish to have a memorandum or a moral force agreement put in place; these are often found in community mediations. In other instances, a more comprehensive deed of agreement is drafted and this deed serves to bring a legally binding situation. Charlton and Dewdney (2004, p. 126.) point out that a mediated agreement may be registered with the court to make it legally binding and it is advisable to have a lawyer prepare the form or, at the very least, to obtain independent legal advice about the proposed terms of the agreement.
Mediation has opened the door for parties in conflict to resolve their differences through non-traditional judicial forums. Over the last few decades, mediation has brought to light the processes, or alternatives to litigation, that enable parties to resolve their differences without the high cost associated with litigation. An interesting remark made by Spencer and Altobelli (2005, p. 223): “Court systems are eager to introduce mandatory mediation as a means to meet their needs to reduce case loads and adversarial litigation, and participants who understand the empowerment of mediation to self-determine their own agreements are equally as eager to embrace mediation as an alternative to costly and potentially harmful litigation.”
Recently[when?], mediation has come under the spotlight and the watchful eye of many state legal systems[who?] for its ability to resolve party disputes, reduce court case loads, and reduce overall legal costs. Yet while parties enter into mediation intending to preserve their legal rights and remedies, mediation may result in these rights being directly or indirectly affected. Parties that have resolved their conflict through this voluntary process and settled on an agreement should seek legal advice if they are unsure of the consequences.
Common aspects of mediation
Mediation as a process involves a third party (often an impartial 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, ormindful 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. The term “mediation” also sometimes occurs incorrectly referring to arbitration; a mediator does not impose a solution on the parties, whereas an arbitrator does.
While mediation implies bringing disputing parties face-to-face with each other, the strategy of “shuttle diplomacy”, where the mediator serves as a liaison between disputing parties, also sometimes occurs as an alternative.
Some of the types of disputes or decision-making that often go to mediation include the following:
- Prenuptial/Premarital 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
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); Peace Table (for Primary Grades)
- 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 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 of the parties allowed to explain and detail their 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 (the law does not ordinarily govern a mediator’s methods), that might eventually differ markedly 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, a sub-category of online dispute resolution, involves the application of online technology to the process of mediation. Online Mediation extends the reach of mediators to disputes between persons who are too geographically distant, or otherwise unable (for example, through disability), to attend; or where the value of the dispute does not justify the cost of a face-to-face mediation. Online mediation can also prove useful prior to face-to-face mediation — to commence the mediation process early where urgency exists, to narrow the issues, to commence brainstorming of solutions and to prepare the parties.
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 generic contraposition 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 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.
Academics sometimes include this activity among 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 specialized designations and usually obey special laws. Generally, mediators cannot practice commerce in the genre of goods in which they work as specialized mediators.
Procurement Mediation may be considered a sub-field with particular identifying characteristics in that one party will be a state or public body operating in a private contractual sphere. In Common Law jurisdictions there is normally no separate body of public contractual law beyond those regulatory stipulations on creation of the supply contracts that derive from the fields of State Aids (EU Law and domestic application) or general administrative guidelines provided by the body in question or its regulating government body. The general law of contract will apply in the UK accordingly. Procurement Mediation occurs in circumstances after creation of the contract where a dispute arises in regard to the performance of the contract or the payments due under it. A Procurement Mediator in the UK may be a regular specialist in this type of contract known to the parties alternatively may derive his appointment from formal approval by the public body in question to a specific private mediation panel (e.g. Savills Mediation). The skills required for such mediations may be found however more generally amongst mediators appointed to handle contracts of a commercial character where general principles of contractual law apply
Mediation and litigation
Mediation offers a process by which two parties work towards an agreement with the aid of a neutral third party. Litigation, however, is a process in which the courts impose binding decisions on the disputing parties in a determinative process operating at the level of legal rights and obligations [Boulle 2005]. These two processes sound completely different, but both are a form of dispute resolution. Litigation is conventionally used and conventionally accepted, but Mediation is slowly becoming more recognized as a successful tool in dispute resolution. Slowly these processes are becoming inter-dependent, as the Courts in some cases are now referring parties to Mediation. In saying this, there are distinct differences between the two processes. Mediation claims to resolve many of the problems associated with litigation, such as the high costs involved, the formality of the court system and the complexity of the court process. Mediation does not create binding agreements unless the parties consent to it, and the Mediator has no say in the outcome. Even though our court system and mediation have increasing connections, they still reflect different value assumptions and structural approaches towards dispute resolution.
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 ADR-providers. Many community programs also provide mediation for disputes between landlords and tenants, members of homeowners associations, and businesses and consumers. Mediation helps the parties to repair relationships, in addition to addressing a particular substantive dispute. Agreements reached in community mediation are generally private, but in some states, such as California, the parties have the option of making their agreement enforceable in court. Many community programs offer their services for free or at most, charge a nominal fee.
The roots of community mediation can be found in community concerns to find better ways to resolve conflicts, and efforts to improve and complement the legal system. Citizens, neighbors, religious leaders* and communities became empowered, realizing that they could resolve many complaints and disputes on their own in their own community through mediation. Experimental community mediation programs using volunteer mediators began in the early 1970s in several major cities. These proved to be so successful that hundreds of other programs were founded throughout the country in the following 2 decades. Community mediation programs now flourish throughout the United States.
Mediation is alternative dispute resolution (ADR), it is used to resolve a disagreement between parties. A peer mediator is someone in the same age group as the parties, or other strong similarities. Such as all being students at the same school, or all being equal levels in a business. As a peer mediator they can relate to the parties having the disagreement better than an outsider could. So ideally they would be able to be more successful in mediation.
Peer Mediation Approaches
Approaches to peer mediation first include choosing a peer mediator that is neutral and can remain neutral during mediation. Peer mediation had long term positive benefits on schools. This happens by promoting social cohesion, they facilitate the development of protective factors that create positive school climates. Through the National Healthy School Standard (Department for Education and Skills, 2004) highlights the significance of this form of approach to lowering bullying levels and promoting pupil achievement.
Peace Pals is an empirically validated peer mediation program (Schellenberg, Parks-Savage & Rehfuss, 2007), published in the American School Counselors Association (ASCA) award-winning journal, Professional School Counseling, (PSC). The program’s creator is Dr. Rita Schellenberg, counselor educator, counselor supervisor, and licensed professional school counselor. The program was implemented at the elementary school level and found to be effective in reducing school violence and enhancing pro-social skills, while creating a more positive, peaceable school climate.
Peer Mediation Results
When peer mediation was used in schools there was a reduction in crime in schools, counselor and administrator time in dealing with student enhanced, self-esteem, better attendance, and development of leadership and problem-solving skills on the part of students. Such conflict resolution programs have increased in schools 40% since 1991.
For example, a study of the Peace Pals peer mediation program was conducted in a diverse suburban elementary school where mediation was available to all students (N = 825). Outcome data revealed significant and long-term reductions in school-wide violence over a five year period following program implementation. The reductions included both verbal and physical conflict among diverse student populations within the school (Schellenberg, Parks-Savage, & Rehfuss, 2007). In addition to reducing school-wide violence, the study also indicated significant gains in mediator knowledge pertaining to conflict, conflict resolution, and mediation, which was maintained at 3-month follow-up. Additionally, mediators and participants viewed the Peace Pals program as effective and valuable, and all mediation sessions resulted in successful resolve.
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 parties expect mediators to be process experts only (i.e., 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.
When to use mediation
Not all disputes lend themselves well to mediation. One set of criteria for suitability, which is applied in the subsection below, is provided in Mediation – Principles Process Practice, Boulle L. 2005
Factors relating to the parties
Factors relating to the parties provide the most important determinants when deciding whether or not a dispute lends itself to mediation, as of course, the parties are the essential key to mediation. Basically, if the parties’ are not ready and willing to mediate, mediation cannot take place. If a mediation does take place against the parties’ wishes, the process will not work because one of the principles of mediation is participation, and the parties will not constructively participate if they are forced. Another factor to consider when judging a dispute’s suitability for mediation is whether the parties have legal representation. If one party does and the other does not, then it is not fair to mediate. Unlike the court system, a legal representative will not be appointed to the non-represented party. Therefore both parties need to consent to either be represented by legal advisers or not. It is not essential that legal advisers are present in the mediation session. However in most cases it is strongly advised that the parties seek legal advice before signing the legally binding agreement. A final factor to consider is the legal capacity of the parties. A minor cannot enter a mediation session for obvious legal reasons, the same goes for a person with mental illness or disability that would affect their decision-making ability. Once these are considered and no difficulties found, the remaining points on the checklist need to be considered.
There are several blogs and knolls dedicated to this topic. Notably the International Mediation Institute has a decision tree on its website, which is designed to help the parties to jointly select the most suitable mediator out of several neutrals who have all achieved certain level of professional competency. Seehttp://www.imimediation.org/decision-tree.
Preparing for mediation
People participating in mediation, often called “parties” or “disputants”, can take several steps to prepare for mediation, as can their lawyers, if involved.
Just as parties need not agree to take part in mediation, they need not prepare for mediation — with one notable exception. In some court-connected programs, courts will require disputants to both participate in and prepare for mediation. Preparation involves making a statement or summary of the subject of the dispute and then bringing the summary to the mediation.
If preparation for mediation is voluntary, why bother? Research uncovered the following potential benefits of preparing. Disputants who meet the mediator prior to the mediation meeting tend to have less anxiety, a higher percentage of their disputes settle at mediation, and they express increased satisfaction with the mediation process.
Is mediation the right dispute resolution process at this time? This subdivides into two questions: is mediation the right dispute resolution process?; and are the parties ready to settle? For example, the dispute may involve a significant power-imbalance between the parties. In such a case, another dispute resolution process may make a better job of balancing power.
Readiness has great importance. Perhaps a loss or injury has occurred too recently. Overwhelming emotions may render objective decision-making extremely difficult, if not impossible. Alternatively, an injury may not have had sufficient time to heal so that any continuing loss becomes difficult to quantify. Other examples abound. Although entering into a mediation to settle the entire dispute may seem inappropriate, this does not mean that mediation cannot help. Some disputants participate in brief mediations with the goal of finding an interim solution to the problem that manages what the parties need to investigate during the interval between the present and when the dispute is ready to be settled.
Another preliminary mediation task involves identifying who should participate in the mediation. Laws give decision-making power to certain individuals. It seems obvious that these individuals are essential to the mediation. Others important participants could include lawyers, accountants, support-persons, interpreters, or spouses. Ask: who needs to be involved in order to reach settlements that will be accepted and implemented?
Convening a mediation meeting requires as much care as convening any important meeting. What location will best foster settlement? Do any participants have special needs? What date and time will work best? Will participants have access to food and beverages? Should the room have a table and chairs, or couches? Does the room have natural light? Does it offer privacy? How much time might a mediation take?
At times disputants have the ability to select the mediator: they should exercise due diligence. Anyone can act as a mediator, with no licensing required. Some mediator organizations require mediators to qualify. Mediators listed in court-connected rosters have to meet certain experiential and training requirements. Many mediators have a wide range of skills. Matching the mediator with the dispute and the needs of the disputant comprises a pre-mediation task. For example, the mediator will need to have skill in managing the many parties involved in a land-use dispute. Expertise in family law may prove important in divorce mediation, while knowledge of construction matters will add value in construction disputes.
The task of selecting the right mediator can occur more readily when participants take time to analyze the dispute. Just what is the dispute about? Parties probably agree in some areas. By identifying agreements, parties clarify the issues in dispute. Typically, misunderstandings occur. These usually result from assumptions. What if these can get cleared up? Might some information be missing? and if all of the disputants shared all of the information, would the matter quickly settle?
Mediation involves communication and commitment to settle. Disputants can hone their communication-skills prior to mediation so that they express what they want more clearly and so that they hear what the other disputants say about what a settlement needs to include. Sometimes the dispute isn’t about money. Rather, a sincere apology will resolve matters. When disputants communicate respectfully, they generate more opportunities for creative settlements.
What objectives does each of the disputants have? Thinking about creative ways that each disputant can achieve their objectives before the mediation allows participants to check out the viability of possible outcomes. They come to the meeting well prepared to settle.
What information do participants require in order to make good decisions? Do pictures, documents, corporate records, pay-stubs, rent-rolls, receipts, medical reports, bank-statements and so forth exist that parties need to gather, copy and bring to the mediation? With all of the information at hand at the mediation, one may avoid the need to adjourn the meeting to another, later date while parties gather the information. And one minimises the risk of overlooking a critical piece of information.
Parties may need to make procedural choices. One important decision involves whether to keep the mediation. Other decisions address how to pay the mediator and whether to share all information relevant to the dispute. A contract signed before the mediation can address all procedural decisions. These contracts have various names, such as “Agreement to Mediate” or “Mediation Agreement”. Mediators often provide an Agreement to Mediate. Disputants, and their lawyers, can (by agreement) insert appropriate provisions into the agreement. In some cases, court-connected mediation programs have pre-determined procedures.
Mediators have a wide variety of practices in matters of contact with the disputants or their lawyers prior to the mediation meeting. Some mediators hold separate, in-person preliminary meetings with each disputant. These have many names, including “preliminary conferences”. Disputants who meet with the mediator before the mediation learn about the process of mediation, their own role, and what the mediator will do. Having met the mediator before the mediation, disputants can put to rest any concerns about whether they can trust the mediator’s neutrality and impartiality; and they can focus on how to resolve the dispute.
The above outline sets out the most significant steps in preparation for mediation. Each unique dispute may require a unique combination of preliminary steps.
To assist parties in preparing for commercial mediations, particularly in cross-border disputes where there can be very different understandings of the word “mediation” and the mediation process, the International Mediation Institute has posted an online evaluation form (called OLE!), which is designed to be used by parties working together with their counsel. This form can be downloaded from the IMI’s website at http://www.imimediation.org/ole.
References for Preparing for Mediation in Australia
1Zutter, Deborah. Preliminary Mediation Practices. Bond University, Australia:Unpublished Thesis, 2004.
Boulle, Laurence (1996). Mediation: Principles, Process, Practise. Sydney: Butterworths. ISBN 0406927472.
Lancken, Stephen (2000). “The Preliminary Conference: Option or Necessity?”. Australian Dispute Resolution Journal 196 (11).
Zutter, Deborah (1999). “Mediation in the Shadow of Abuse”. The Advocate 867.
Mediation as a method of dispute resolution
In the field of resolving legal controversies, mediation offers 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, the parties can (usually with assistance from legal counsel) commit agreed points to writing and sign this document, thus producing a legally binding contract in some jurisdictionspecified therein.
Mediation differs from most other conflict resolution processes by virtue of its simplicity, and in 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 jurisdiction (area)s – 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.
One can reasonably see mediation as the simplest of many such processes, where no great dispute exists about political context, where 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.
Assuming some warranty of safety, fairness, and closure, then the process can reasonably be called ‘mediation proper’, and be described thus:
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Ratification and review
Some mediated agreements require ratification by an external body to which a negotiating party must account — such as a board, council or cabinet. In other situations it may be decided or understood that agreements will be reviewed by lawyers, accountants or other professional advisers after the mediation meeting. Ratification and review provide safeguards for mediating parties. They also provide an opportunity for persons not privy to the dynamics of a mediation and the efforts of the negotiating parties to undermine significant decisions they have made.
In the United States, the implementation of agreements reached in mediation requires tailoring to the mediated subject. For example, successful family and divorce mediations must memorialize an agreement which complies with the statutes of the state in which the parties will implement their mediated agreement. In New York, for example, the New York Domestic Relations Law specifies both technical and substantive requirements with which pre-marital (or pre-nuptial) and post-marital (or post-nuptial) agreements must comply (NY Domestic Relations Law, Sec. 236, Part B).
In some situations the sanctions of a court or other external authority must validate a mediation agreement. Thus if a grandparent or other non-parent is granted residence rights in a family dispute, a court counselor will be required to furnish a report to the court on merits of the proposed agreement. Parties to a private mediation may also wish to obtain court sanction for their decisions. Under the Queensland regulatory scheme on court connected mediation, mediators are required to file with a registrar a certificate about the mediation in a form prescribed in the regulations. A party may subsequently apply to a relevant court an order giving effect to the agreement reached. Where court sanction is not obtained, mediated settlements have the same status as any other agreements.
Referrals and reporting-obligations
Mediators may at their discretion refer one or more parties to psychologists, accountants or social workers for post-mediation professional assistance. Where mediation is provided by a public agency, referrals are made to other authorities such as Centrelink.
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 community mediation services debriefing is compulsory and mediators are paid for the debriefing session.
Mediator roles and functions
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Mediator functions are classified into a few general categories, each of which necessitates a range of specific interventions and techniques in carrying out a general function.
Creating favorable conditions for the parties’ decision-making
Mediators can contribute to the settlement of disputes by creating favorable conditions for dealing with them. This can occur through:
- Providing an appropriate physical environment- this is through selection of neutral venues, appropriate seating arrangements, visual aids and security.
- Providing a procedural framework- this is through conduct of the various stages of mediation process. As the chair of the proceedings, they can establish basic ground rules, provide order, sequence and continuity. The mediators opening statement provides an opportunity to establish a structural framework, including the mediation guidelines on which the process will be based.
- Improving the emotional environment- this is a more subtle function and varies among mediations and mediators. They can improve the emotional environment through restricting pressure, aggression and intimidation in the conference room by providing a sense of neutrality and by reducing anxiety among parties.
Assisting the parties to communicate
People in conflict tend not to communicate effectively and poor communication can cause disputes to occur or escalate. For mediators to encourage communication efficiently, they themselves must be good communicators and practice good speaking and listening skills, pay attention to non-verbal messages and other signals emanating from the context of the mediation.
Facilitating the parties’ negotiations
Mediators can contribute expertise and experience in all models and styles of negotiation so that the parties are able to negotiate more constructively, efficiently and productively. This function is prominent after the problem-defining stages of mediation and involves mediators bringing direction and finesse to the negotiation efforts of the parties. Mediators can also act as catalysts for creative problem solving, for example by brainstorming or referring to settlement options generated in analogous mediation experiences.
Functions of the parties
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The functions of the parties will vary 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. In New South Wales the Law Society has published A guide to the rights and Responsibilities of participants.
Whether parties enter mediation of their own volition or because legislation obligates them to do so, they prepare for mediation in much the same way they would for negotiations, save that the mediator may supervise and facilitate their preparation. Mediators may require parties to provide position statements, valuation reports and risk assessment analysis. The parties may also be required to consent to an agreement to mediate before preparatory activities commence.
Disclosure of information
Agreements to mediate, mediation rules, and court-based referral orders may have requirements for the disclosure of information by the parties and mediators may have express or implied powers to direct them 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. This would include witness statements, valuations and statement accounts.
The objectives of mediation, and its emphasis on consensual outcomes, imply a direct input from the parties themselves. The mediation system will expect that parties attend and participate in the mediation meeting; and some mediation rules require a party, if a natural person, to attend in person. However, the process assesses party participation in overall terms, so a party failing to participate in the initial stages may make up for this later in the process.
Choice of mediator
The choice of mediation as a dispute resolution option links closely to the identity of a mediator who conducts it. This follows from the circumstances: different models of mediation exist, mediators have a lot of discretion in a flexible procedure, and the mediator’s professional background and personal style have enormous potential impacts on the nature of the service provided. These factors make the selection of mediators of real practical significance.
The term “choice of mediator” implies a process of deliberation and decision-making. No formal mechanism for objecting to the appointment of particular mediators exists, but in practice the parties could ask mediators to withdraw for reasons of conflict of interest. In community mediation programs the director generally assigns mediators without party involvement. In New South Wales, for example, when the parties cannot agree on the identity of a mediator the registrar contacts a nominating entity, such as the Bar Association which supplies the name of a qualified and experienced mediator.
The following are useful ways of selecting a mediator:
- Personal attributes – qualities and characteristics which are innate, as opposed to skills and techniques which can be learned and developed. In this concept a number of desirable attributes for mediators include interpersonal skills, patience, empathy, intelligence, optimism and flexibility.
- Mediation qualifications, experience and background – while some jurisdictions prescribe no generalized qualifications for mediators, in some specific contexts mediators require qualifications prescribed by legislation. In New South Wales, for example, the Family Law Act 1975 (Cth) proscribes qualifications for mediators. Qualifications usually revolve around knowledge of the theory and practice of conflict, negotiation and mediation, mediations skills, and attitudes appropriate for mediation. There are three factors of relevance: experience in practice of mediation, experience in the substantive area of dispute, and personal life experience.
- the mediator’s training
- the mediator’s professional background
- the mediator’s certification and its value
- the mediation model offered, and whether it suits the case
- any conflict of interest the mediator may have
- the mediator’s willingness to allow, and possibly encourage, mediation participants to seek creative solutions
- the mediator’s fee
Choice of Mediator: Third party nomination
It is not always the case that a mediator can personally be identified or agreed upon by the parties in advance. Some mediation procedures derive from standard form contracts that routinely stipulate choice of mediator in advance in default of the parties themselves choosing a mediator previously known to them. There is a qualitative difference between clauses that give the appointing body the right to impose such mediator as it may choose and clauses that permit an appointing body to suggest a mediator for the parties to accept or reject. Standard form contracts may choose either form of words. In commercial contracts the willingness of parties to mediate at all may depend on the confidence invested in the nominating body, whether that body is a professional organisation that effectively guarantees that the mediator proffered for mediation is a practising professional operating to the ethical standards of that body or an organisation that itself offers a form of mediation training to a standard of its own designation. These may be “open” lists that any person willing and suitably qualified can apply to join; conversely a private commercial “closed” panel may be one of a highly selective character that is closed except by invitation to persons seeking appointment as mediators. Fees to the appointing body for services supplied will vary depending on what services are provided as part of the mediation process. Not all appointments will incur fees but fee transparency may be looked for in this context.
- In New South Wales, for example, when the parties cannot agree on the identity of a mediator the registrar contacts a nominating entity, such as the Bar Association which supplies the name of a qualified and experienced mediator.
- In the UK and internationally Established institutions offering regulation of professionals or acting as providers of dispute resolution training as a primary activity maintain general “open” mediation lists e.g. The Chartered Institute of Arbitrators, the Centre for Dispute Resolution. In the commercial sector; “closed” panels maintained privately co-exist and compete for appointments e.g. Savills Mediation.
Values of mediation
Mediation contains three aspects: feature, values and objectives. The three aspects, although different, can and do at times overlap in their meaning and use. There are a number of values of mediation including Non Adversarialism, Responsiveness and Self Determination and Party Autonomy.
Each Person, Mediator and Process has values that can be attributed to them. These values are as diverse as Human Nature itself and as such provides for no uniformity amongst the values and on how those values are enforced by each party.
The Non-adversarialism value of mediation is not based on the attitudes of the parties involved, but is based on the actual process of mediation and how it is carried out. To clarify the context of the meaning it is said that Litigation is adversarial as its process must come to a logical conclusion based on a decision made by a presiding judge. Mediation does not always end with a decision.
Responsiveness, another value of mediation, responds to the interests of the parties without the restrictions of the law. It allows the parties to come to their own decisions on what is best for them at the time. Responsiveness shows how the mediation process is informal, flexible and collaborative and is person centered.
Self-determination and party autonomy gives rise to parties gaining the ability to make their own choices on what they will agree on. It gives the parties the ability to negotiate with each other to satisfy their interests, generate some options which could lead to an outcome satisfactory to both parties. This autonomy or independent structure provided by the mediation process removes the need for the presence of professional bodies and turns the responsibility back on to the parties to deal with the issue and hopefully to a satisfactory conclusion.
Mediation vs Arbitration
Mediation and Arbitration are generally contractually agreed upon substitutes for resolving disputes as opposed to resorting to a court to resolve it. The purpose and goals of Mediation and Arbitration, however, are quite different and often misunderstood.
The purpose of Mediation is to have the parties sit down with a neutral third party who tries to facilitate a monetary or other settlement to the dispute. Neither party has a legal obligation to settle the dispute, nor any statements made during a Mediation are not admissible evidence in the event no settlement is reached. Mediation can be a highly efficient, cost effective tool. It can conclude quickly or it can take several hours as the mediator conducts multiple rounds of shuttle diplomacy between the parties. After many hours the parties feel personally invested in the process and neither wishes to leave without settling the dispute. It is important to remember, however, that because the mediator’s job is to get a settlement, regardless of its terms, it is up to you to determine if you can live with the settlement terms. In the event the Mediation fails and an Arbitration provision is not contained in the contract, you can enforce your rights in a court of law.
Binding Arbitration provisions, on the other hand, are a substitute for the formal process of a court. Binding Arbitration is typically conducted in front of one or three arbitrators and the Arbitration is much like a mini trial with rules of evidence. Arbitration typically proceeds somewhat faster than a case in court, and typically at a somewhat lower cost in attorney time and expense. The result of the Arbitration is final and the parties can rarely successfully appeal an arbitrators’ decision even if it appears to be completely unreasonable or unfair.
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.
Mediators should take necessary precautions to protect themselves, as they are putting themselves in a vulnerable position in terms of liability. Mediators need to be qualified and properly trained before they can mediate a legally binding mediation. In mediation, there are a number of situations in which liability could arise. For example, a mediator could be liable for misleading parties about the process and/or process of alternative dispute resolution. If a mediator inappropriately recommends mediation as a dispute resolution method, those involved can hold the mediator liable. A breach of confidentiality on the mediators behalf could result in liability. These situations can all lead to court proceedings, although this is quite uncommon. Only one case has been recorded in Australia so far.
Three areas exist in which liability can arise for the mediator:
- Liability in Contract
- Liability in Tort
- Liability for Breach of Fiduciary Obligations.
Liability in Contract arises if the Mediator breaches contract between themselves and one or both of the parties. This can be in written or verbal contract. There are two forms of breach – failure to perform and anticipatory breach. The latter is harder to prove because the breach has not yet happened. If the breach is proven in can result in damages awarded. The damages awarded are generally compensatory in nature, very rarely pecuniary. Limitations on liability include causation (Proving liability requires a showing of actual causation).
Liability in Tort arises if a mediator influences a party in any way (compromising the integrity of the decision), defames a party, breaches confidentiality, or most commonly, is liable in negligence. To be awarded damages, the party must show suffering of actual damage, and must show that the mediator’s actions (and not the party’s actions) are the actual cause of the damage.
Liability for Breach of Fiduciary Obligations can occur if parties misconceive their relationship with the Mediator for something other than completely neutral. The mediator has the role of remaining neutral at all times, but the parties could misinterpret the relationship to be a fiduciary one.
Mediators’ liability in Tapoohi v Lewenberg (Australia)
Tapoohi v Lewenberg provides the only case in Australia to date that has set a precedent for mediators’ liability.
The case involved two sisters who settled a deceased estate via mediation. Only one sister attended the mediation in person: the other participated via telephone with her lawyers present. A deal was struck up and an agreement was executed by the parties. At the time it was orally expressed that before the final settlement was to occur there was requirement for taxation advise to be sought as such a large transfer of property would encompass some capital gains tax to be paid.
Tapoohi had to pay Lewenberg $1.4 million dollars in exchange for some transfers of land. One year later, when the capital gains tax was recognized by Tapoohi she filed proceedings against her sister, lawyers and the mediator based on the fact that the agreement was subject to further advice being sought in relation to taxation.
The mediator’s agreement stage took place verbally without any formal agreement: only a letter stating his appointment. Tapoohi, a lawyer herself, alleged that the mediator breached his contractual duty, bearing in mind the lack of any formal agreement; and further alleged several breaches on his tortuous duty of care.
Although the court dismissed the summary judgment, the case shows that the mediators owe a duty of care to all parties and that parties can hold them liable should they breach that duty of care. Habersberger J held that it “not beyond argument” that the mediator could be in breach of contractual and tortious duties. Such claims were required to be made out at a hearing but a trial court.[clarification needed]
This case emphasizes the need for formal mediation-agreements including clauses that would limit mediators’ liability.
Mediation 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, those 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.
Professional mediators often consider the option of liability insurance — traditionally marketed through professional dispute-resolution organizations.
The without-prejudice privilege in common law terms denotes that when in honest attempts to reach some type of settlement any offers or admissions cannot be used in a court of law when the subject matter is the same. This further applies to negotiations that are made as part of the mediation process. There are however some exceptions to the without privilege rule.
The without prejudice privilege emerges clearly from the description of the case AWA Ltd v Daniels (t/as Deloitte Haskins and Sells). AWA Ltd commenced proceedings in the Supreme Court of NSW against Daniels for failing to audit their accounts properly. Mediation was ordered and failed. But during the mediationAWA Ltd disclosed that they had a document that gave its directors full indemnity with respect to any legal proceedings. AWA Ltd was under the impression that they gave this information without prejudice and therefore it could not be used in a court of law. When mediation failed litigation resumed.
During the litigation Daniels asked for a copy of the indemnity deed. AWA Ltd claimed privilege, but the presiding Rolfe J, stated that privilege was not applicable as the document was admissible. Further to this Rolfe, J added that Daniels was “only seeking to prove a fact which was referred to in the mediation”.
The without-prejudice privilege does not apply if it has been excluded by either party or if the rights to the privilege has been waived in proceedings and it must be remembered that although a mediation is private and confidential, the disclosure of privileged information in the presence of a mediator does not represent a waiver of the privilege.
Mediation in politics and in diplomacy
Diplomats typically engage in mediation as one of their most important activities. Some people[who?] 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[who?] claim that mediation is a form of harms reduction or de-escalation, especially in its large-scale application in peace process and similarnegotiation, 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.
Mediation and industrial relations
According to Boulle (2005, p. 286), conciliation and ADR began in industrial relations in Australia long before the arrival of the modern ADR movement. One of the first statutes passed by the Commonwealth parliament was the Conciliation and Arbitration Act 1904 (Cth). This allowed the Federal Government to pass laws on conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one state. In Australian industrial relations, conciliation has been the most prominently used form of ADR, and is generally far removed from modern mediation.
Significant changes in state policy concerning Australian industrial relations took place over the decade 1996 to 2007. The Howard government, with the introduction of the Workplace Relations Act 1996 (Cth), sought to shift the industrial system away from a collectivist approach, where unions and the AIRC had strong roles, to a more decentralized system of individual bargaining between employers and employees (Bamber et al., 2000, p. 43). The WRA Act 1996 (Cth) diminished the traditional role of the AIRC by placing the responsibility of resolving disputes at the enterprise level (Boulle, 2005, p. 287). This allowed mediation to be used to resolve industrial relations disputes instead of the traditionally used conciliation.
The new ‘Work Choices’ Amendment came into effect in March 2006, and included a compulsory model dispute-resolution process that doesn’t involve the AIRC. Mediation and other ADR processes have been encouraged by the government as a better option than the services provided by the AIRC. The government has realized the benefits of mediation to include the following (Van Gramberg, 2006, p. 11):
- Mediation is cost saving
- Avoids polarization of parties
- Is educative
- Probes wider issues than the formal court system
- Provides greater access to justice
- Gives disputants more control over the dispute process
The workplace and mediation
Mediation emerged on the industrial relations landscape in the late 1980s due to a number of economic and political factors[which?], which then induced managerial initiatives. According to Van Gramberg (2006, p. 173) these changes have come from the implementation of human resource management policies and practices, which focuses on the individual worker, and rejects all other third parties such as unions, and the Australian Industrial relations Commission (AIRC). HRM together with the political and economic changes undertaken by the Howard government has created an environment where private ADR can be fostered in the workplace (Bamber et al., 2000, p. 45). The decline of unionism and the encouragement of individualization in the workplace have encouraged the growth of private mediations. This is demonstrated in the industries with the lowest union rates such as in the private business sector having the greatest growth of mediation (Van Gramberg, 2006, p. 174).
The Howard government’s Work Choices Act, which came into effect on March 2006, made further legislative changes to deregulate the industrial relations system. A key element of the new changes was to weaken the powers of the AIRC in conciliation and arbitration by installing and encouraging private mediation in competition with the services provided by the AIRC.
Workplace conflicts can cover a great variety of disputes. For example disputes between staff members, allegations of harassment, contractual disputes relating to the terms and conditions of employment and workers-compensation claims (Boulle, 2005, p. 298). At large, workplace disputes are between people who have an ongoing working relationship within a closed system, which indicate that mediation or a workplace investigation would be appropriate as a means of a dispute resolution process. However in organisations there are many complex relationships, involving hierarchy, job security and competitiveness that make mediation a difficult task (Boulle, 2005, p. 298).
Society perceives conflict as something that gets in the way of progress, as a negative symptom of a relationship that one should cure as quickly as possible (Boulle, 2005, p. 87). However within the mediation profession conflict is seen as a fact of life and when properly managed it can have many benefits for the parties and constituents (Bagshaw, 1999, p. 206, Boulle, 2005, p. 87; Schellenberg, Parks-Savage, & Rehfuss, 2007). The benefits of conflict include the opportunity to renew relationships and make positive changes for the future. Mediation should be a productive process, where conflict can be managed and expressed safely (Bradford, 2006, p. 148). It is the mediator’s responsibility to let the parties express their emotions entailed in conflict safely. Allowing the parties to express these emotions may seem unhelpful in resolving the dispute, but if managed constructively these emotions may help towards a better relationship between the parties in the future.
Measuring the effectiveness of conflict management
The ADR field has felt a need to define the effectiveness of dispute-resolution in a broad manner, including more than whether there was a settlement (Boulle, 2005, p. 88). Mediation as a field of dispute resolution recognized there was more to measuring effectiveness, than a settlement. Mediation recognised in its own field that party satisfaction of the process and mediator competence could be measured. According to Boulle (2005, p. 88) surveys of those who have participated in mediation reveal strong levels of satisfaction of the process.
Benefits of mediation may include:
- discovering parties’ interests and priorities
- healthy venting of emotions in a protected environment
- an agreement to talk about a set agenda
- identifying roles of the constituents, such as relatives and professional advisors
- knowledge of a constructive dispute resolution for use in a future dispute
Confidentiality and mediation
Confidentiality emerges as a powerful and attractive feature of mediation (Van Gramberg, 2006, p. 38). The private and confidential aspect of mediation is in contrast with the courts and tribunals which are open to the public, and kept on record. Privacy is a big motivator for people to choose mediation over the courts or tribunals. Although mediation is promoted with confidentiality being one of the defining features of the process, it is not in reality as private and confidential as often claimed (Boulle, 2005, p. 539). In some circumstances the parties agree that the mediation should not be private and confidential in parts or in whole. Concerning the law there are limits to privacy and confidentiality, for example if their mediation entails abuse allegations, the mediator must disclose this information to the authorities. Also the more parties in a mediation the less likely it will be to maintain all the information as confidential. For example some parties may be required to give an account of the mediation to outside constituents or authorities (Boulle, 2005, p. 539).
Two competing principles affect the confidentiality of mediations. One principle involves upholding confidentiality as means to encourage people to settle out of the courts and avoid litigation, while the second principle states that all related facts in the mediation should be available to the courts.
A number of reasons exist for keeping mediation private and confidential; these include:
- it makes the mediation appealing
- it provides a safe environment to disclose information and emotions
- confidentiality makes mediation more effective by making parties talk realistically
- confidentiality upholds mediators’ reputations, as it reinforces impartiality
- confidentiality makes agreement more final, as there is little room to seek review
The rise of international trade law, continental trading blocs, the World Trade Organization (and its opposing anti-globalization movement), and use of theInternet, among other factors, seem to suggest[original research?] that legal complexity has started to reach 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 people, like members of 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, some commentators[who?] in recent times[when?] have frequently proposed mediation for the resolution of international disputes, with attention to belligerent situations too.
However, as mediation ordinarily needs participation 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 international 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 a party offers to mediate and a mediator attempts to make the process fair, mediation itself might not operate as a fair process. In such cases, parties may pursue other means of dispute resolution.
From a more technical point of view, however, one must recall that the parties must require mediation, 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 other mechanisms apart from legal systems may ensure protection of the pacts: modern mediation frequently tends to define economic 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.
- Conflict resolution research
- Conflict Style Inventory
- Conflict Management Style
- Family therapy
- Intercultural competence
- Lawyer supported mediation
- Life coaching
- National Arbitration Forum
- Nonviolent communication
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- ^ http://cfrmediation.com/a-short-history-of-mediation/
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- ^ http://www.nadrac.gov.au/www/nadrac/nadrac.nsf/Page/WhatisADR_NationalMediatorAccreditationSystem_NationalMediatorAccreditationSystem
- ^ Cremin, H. (2007) Peer mediation: citizenship and social inclusion revisited. Open University Press
- ^ a b Noaks, J. & Noaks, L. (2009). “School-based peer mediation as a strategy for social inclusion”. Pastoral Care In Education 27 (1): 53–61.
- ^ Cremin (2007, p. 119)
- ^ Gerber, S 1999, ‘Does peer mediation really work?’, Professional School Counseling, 2, 3, 169
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- ^ “What is Family Mediation?”. Retrieved 5 October 2011.
- ^ Mediation vs Arbitration – Mediation, Arbitration, Divorce and ADR Services, retrieved 2010-08-27
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