Mediation, a form of alternative dispute resolution (ADR) or "appropriate dispute resolution", aims to assist two (or more) disputants in reaching an agreement. Whether an agreement results or not, and the content of that agreement (if any) the parties themselves determine — rather than accepting something imposed by a third party. The disputes may involve (as parties) states, organizations, communities, individuals or other representatives with a vested interest in the outcome.
Mediators use appropriate techniques and/or skills to open and/or improve dialogue between disputants, aiming to help the parties reach an agreement (with concrete effects) on the disputed matter. Normally, all parties must view the mediator as impartial.
Disputants may use mediation in a variety of disputes, such as commercial, legal, diplomatic, workplace, community and family matters.
The activity of mediation in itself appeared in very ancient times. Historians presume early cases in Phoenician commerce (but suppose its use in Babylon, too). The practice developed in Ancient Greece (which knew the non-marital mediator as a proxenetas), then in Roman civilization, (Roman law (starting from Justinian's Digest of 530 - 533 CE) recognized mediation. The Romans called mediators by a variety of names, including internuncius, medium, intercessor, philantropus, interpolator, conciliator, interlocutor, interpres, and finally mediator.
The Middle Ages regarded mediation differently, sometimes forbidding the practice or restricting its use to centralized authorities.
"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 facilitatively: 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 does have 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, their definitions 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 feel empowered 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.
Franchise-agreements represent ongoing commercial agreements between the contracting parties. The agreements usually have elements of an imbalance of bargaining power and of an imbalance of business experience between the franchisee and franchisor; and the parties also face many external commercial pressures. The franchising code of conduct functions as a mandatory code under the TPA. All franchise agreements must have a clause that requires dispute resolution. Mediation in this field works because it can identify alternatives for the parties and then the parties can work together to solve the dispute. This type of mediation has formal procedures: for example: whoever wishes to initiate the mediation must advise the respondent in writing, outlining the nature of the dispute ,and they will then have three weeks to agree to a method of resolving the dispute otherwise they may go to mediation. For further information on mediation in the franchise community, and links to further resources, see www.FranchiseMediation.org.
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".
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 fulfil 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.
In Australia, for example, professionals wanting to practise 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 the organisation CEDR takes a similar approach to the training of mediators.
No legislated national or international standards on the level of education which should apply to all mediation practitioner’s organizations exist. However, organisations 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.
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:
Australia has no national accreditation system for ADR. However, following the National Mediation Conference in May 2006, the National Mediation Accreditation Standards system has apparently started to move to its implementation phase.
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.
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.
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 a better long tern 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.
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. Your behaviour affects your neighbours, just as what they do affects you. The key way to prevent conflicts with neighbours is to be a good neighbour yourself. Spencer and Altobelli (2005, p. 17) believe simple consideration and conversation with neighbours helps achieve a peaceful coexistence. Making it is easier for you to live as privately or as sociably as you wish. Ideal suggestions for consideration in preventing conflicts between neighbours include:
One can also employ mediation to reduce or prevent violence in sports and in schools, using peers as mediators is a process known as “peer mediation”. This process (highlighted by Charlton provides a popular way of handling conflicts and of preventing violence in primary schools, high schools and sporting activities. Schools adopting this process often recruit and train students interested in being peer mediators.
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 ultimately avoid the dispute going to the courts.
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;
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.
Recently, mediation has come under the spotlight and the watchful eye of many state legal systems 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.
Transmediation involves the process of "responding to cultural texts in a range of sign systems — art, movement, sculpture, dance, music, and so on — as well as in words."
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, or mindful mediation) directly in the text.
While some people loosely use the term "mediation" to mean any instance in which a third party helps people find agreement, professional mediators generally believe it essential that mediators have thorough training, competency, and continuing education. 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:
Disputes involving the following issues:
Mediation commonly includes the following aspects or stages:
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:
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. For information on online mediation, see The Mediation Room
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 desideratum 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.
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.
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.
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 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 disputes 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 effect their decision-making ability. Once these are considered and no difficulties found, the remaining points on the checklist need to be considered.
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.
The following preparation activities appear in no fixed order. Not all would apply for every mediation.
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, wou;d 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.
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 jurisdiction specified 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 jurisdictions - where 'Mediation' may in fact be formally defined and may in fact require specific licenses. There are more specific processes (such as peace process or binding arbitration or mindful mediation) referred to directly in the text.
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:
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).
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 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;
Mediators can contribute to the settlement of disputes by creating favorable conditions for dealing with them. This can occur through:
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.
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.
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.
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:
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 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 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.
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 advise 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.
This case emphasizes the need for formal mediation-agreements including clauses that would limit mediators' liability.
Note the differences between the legal definition of civil mediation in the United States of America and mediation in other countries. Compared with the situation elsewhere, mediation appears more "professionalized" in the United States, where State laws regarding the use of lawyers as opposed to mediators may differ widely. One can best understand these differences in a more global context of variances between countries.
Within the United States, the laws governing mediation vary greatly on a state-by-state basis. Some states have fairly sophisticated laws concerning mediation, including clear expectations for certification, ethical standards, and protections preserving the confidential nature of mediation by ensuring that mediators need not testify in a case they've worked on. However, even in states that have such developed laws around mediation, that law only relates to mediators working within the court system. Community and commercial mediators practising outside the court system may very well not have these same sorts of legal protections.
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 mediation AWA 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.
Diplomats typically engage in mediation as one of their most important activities. Some people consider that it should be a relevant quality of democratic politicians, given that usually in both these fields the explicitation of the respective mansions (on a formal basis, at least) require the achievement of agreements between separate entities of which the diplomat or the politician are third parties by definition; Hobbes and Bodin found that the organs of a state have a mediating power and function.
These activities are usually performed in order to get, on the subjective point of view of this mediator, a recompense that might be in the form of a direct economical advantage, a political advantage, an increased international prestige or influence.
Some theorists, notably Rushworth Kidder, have claimed that mediation is the foundation of a new (some say 'postmodern') ethics - and that it sidesteps traditional ethical issues with pre-defined limits of morality.
Others claim that mediation is a form of harms reduction or de-escalation, especially in its large-scale application in peace process and similar negotiation, or the bottom-up way it is performed in the peace movement where it is often called mindful mediation. In this form, it would be derived from methods of Quakers in particular.
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 statues passed by 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 have taken place over the past decade. 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 there was a strong role for unions and the AIRC, 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, which has 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 emerged on the industrial relations landscape in the late 1980s due to a number of economic and political factors, 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).
Under the Howard governments new Work Choices Act, which came into effect on March 2006, there has been 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 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 should be cured 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). 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.
Within the ADR field there was a need to define the effectiveness of a dispute in a broader term, which included 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:
Confidentiality is 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 is to uphold confidentiality as means to encourage people to settle out of the courts and avoid litigation, while the second principle is that all related facts to the mediation should be available to the courts.
A number of reasons exist for keeping mediation private and confidential; these include:
The rise of international trade law, continental trading blocs, the World Trade Organization (and its opposing anti-globalization movement), use of the Internet, among other factors, seem to suggest that legal complexity has started to reach to an intolerable and undesirable point. There may be no obvious way to determine which jurisdiction has precedence over which other, and there may be substantial resistance to settling a matter in any one place.
Accordingly, mediation may come into more widespread use, replacing formal legal and judicial processes sanctified by nation-states. Some, like the anti-globalization movement, believe such formal processes have quite thoroughly failed to provide real safety and closure guarantees that are pre-requisite to uniform rule of law.
Following an increasing awareness of the process, and a wider notion of its main aspects and eventual effects, some commentators in recent times have frequently proposed mediation for the resolution of international disputes, with attention to belligerent situations too.
However, as mediation ordinarily needs to be required by the interested parties and it would be very difficult to impose it, in case one of the parts refuses this process it cannot be a solution.
As noted, mediation can only take place in an atmosphere where there is some agreement on safety, fairness and closure, usually provided by nation-states and their legal systems. But increasingly disputes transcend those borders and include many parties who may be in unequal-power relationships.
In such circumstances, with many parties afraid to be identified or to make formal complaints, terminology or rules of standing or evidence slanted against some groups, and without power to enforce even "legally binding" contracts, some conclude that the process of mediation would not reasonably be said to be "fair".
Accordingly, even when 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 mediation must be required by the parties, and very seldom can it be imposed by "non-parties" upon the parties. Therefore, in presence of entities that cannot be clearly identified, and that practically don't claim for their recognition as "parties", the professional experience of a mediator could only apply to a proposal of definition, that besides would always miss the constitutional elements of a mediation. Moreover, in such circumstances, the counter-party of these eventual entities would very likely deny any prestige of 'party' to the opponent, this not consenting any kind of treaty (in a correct mediation).
More generally, given that mediation ordinarily produces agreements containing elements to enforce the pacts with facts that can grant its effectiveness, note that the legal system is not the only means that will ensure protection of the pacts: modern mediation frequently tends to define 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.
The CUNY Dispute Resolution Consortium at John Jay College of Criminal Justice (CUNY DRC) serves as an intellectual home to dispute-resolution faculty, staff and students at the City University of New York and to the diverse dispute-resolution community in New York City. At the United States' largest urban university system, the CUNY DRC has nevertheless become a focal point for furthering academic and applied conflict-resolution work in one of the world's most diverse cities. The CUNY DRC conducts research and innovative program-development, has co-organized many conferences, sponsored training programs, resolved a wide range of intractable conflicts, published research working-papers and a newsletter. It also maintains an extensive database of those interested in dispute-resolution in New York City and a website with resources for dispute resolvers in New York City. After 9/11 in 2001, the CUNY DRC assumed a leadership role for dispute-resolvers in New York City by establishing an extensive electronic mailing-list, sponsoring monthly breakfast meetings, conducting research on responses to catastrophes, and managing a public-awareness initiative to further the work of dispute-resolvers.
The International Institute for Conflict Prevention and Resolution, also known as CPR, comprises a member-sponsored non-profit organization that promotes excellence and innovation in public and private dispute resolution. Founded in 1979 by the general counsel of leading multinational companies, CPR (originally known as the Center for Public Resources) had as its original mission reining-in the costs of business disputes. Since its origins, CPR has taken on a broader international public-policy role, and has become a leading advocate for the adoption of mediation as a means of conflict resolution around the world. The membership of CPR consists of companies, law firms, arbitrators, and mediators. CPR maintains a list of "distinguished neutrals" (well-known mediators and arbitrators). CPR also provides rules of mediation and arbitration for the resolution of disputes. its current CPR’s mission It currently as its mission is "to spearhead innovation and promote excellence in public and private dispute resolution, and to serve as a primary multinational resource for avoidance, management and resolution of business-related and other disputes". CPR's funding derives principally from the annual contributions of its member organizations, and from conferences it organizes around the world ("convenes", to use the organization's own terminology). CPR also hosts a weekly podcast called International Dispute Negotiation (IDN) about "the risks of disputes and optimal ways of accepting, mitigating, and managing those risks in the real world, whether through mediation, arbitration, or litigation that arises far from home".
The Straus Institute for Dispute Resolution at Pepperdine University School of Law provides professional training and academic programs in dispute resolution, including a Certificate, a Masters in Dispute Resolution (MDR) and a Masters of Law in Dispute Resolution (LLM). Straus provides education to law and graduate students, as well as to mid-career professionals in areas of mediation, negotiation, arbitration, international dispute-resolution and peacemaking.