Mediation


Mediation is a form of dispute resolution that resolves disputes between two or more parties, facilitated by an independent neutral third party known as the mediator. It is a structured, interactive process where the mediator assists the parties to negotiate a resolution or settlement through the use of specialized communication and negotiation techniques. All participants in mediation are encouraged to participate in the process actively. Mediation is "party-centered," focusing on the needs, interests, and concerns of the individuals involved, rather than imposing a solution from an external authority. The mediator uses a wide variety of techniques to guide the process in a constructive direction and to help the parties find their optimal solution.
Mediation can take different forms, depending on the mediator's approach. In facilitative mediation, the mediator assists parties by fostering communication and helping them understand each other's viewpoints. In evaluative mediation, the mediator may assess the issues, identify possible solutions, and suggest ways to reach an agreement, but without prescribing a specific outcome. Mediation can be evaluative in that the mediator analyzes issues and relevant norms, while refraining from providing prescriptive advice to the parties. Unlike a judge or arbitrator, mediators do not have the authority to make binding decisions, ensuring that the resolution reflects the voluntary agreement of the parties involved.
The term broadly refers to any instance in which a third party helps others reach an agreement. More specifically, mediation has a structure, timetable, and dynamics that "ordinary" negotiation lacks. The process is private and confidential, possibly enforced by law. Participation is typically voluntary. The mediator acts as a neutral third party and facilitates rather than directs what the outcome of the process must be.
Mediation is becoming an internationally accepted way to end disputes. The Singapore Mediation Convention offers a relatively fast, inexpensive and predictable means of enforcing settlement agreements arising out of international commercial disputes. Mediation can be used to resolve disputes of any magnitude.
Mediation is not identical in all countries. In particular, there are some differences between mediation in countries with Anglo-Saxon legal traditions and countries with civil law traditions.
Mediators use various techniques to open, or improve, dialogue and empathy between disputants, aiming to help the parties reach an agreement. Much depends on the mediator's skill and training. As the practice has gained popularity, training programs, certifications and licensing have produced trained and professional mediators committed to their discipline.

History

The activity of mediation appeared in ancient times. The practice developed in Ancient Greece which knew the non-marital mediator as a proxenetas, then in Roman civilization. recognized mediation. The Romans called mediators by a variety of names, including internuncius, medium, intercessor, philantropus, interpolator, conciliator, interlocutor, interpres, and finally mediator.
Following the war against Rome, the Kushites sent mediators to Augustus, who was in Samos, and in the year 21/20 BC, a peace treaty was concluded.
Now mediation is a form of professional service, and mediators are professionally trained for mediation.

Benefits

The benefits of mediation include:
; Cost : While a mediator may charge a fee comparable to that of an attorney, the mediation process generally takes much less time than moving a case through standard legal channels. While a case in the hands of a lawyer or a court may take months or years to resolve, mediation usually achieves a resolution in a matter of hours. Taking less time means expending less money on hourly fees and costs.
; Confidentiality : While court hearings are public, mediation remains strictly confidential. No one but the parties to the dispute and the mediator or mediators know what happened. Confidentiality in mediation has such importance that in most cases the legal system cannot force a mediator to testify in court as to the content or progress of mediation. Many mediators destroy their notes taken during a mediation once that mediation has finished. The only exceptions to such strict confidentiality usually involve child abuse or actual or threatened criminal acts.
; Control : Mediation increases the control the parties have over the resolution. In a court case, the parties obtain a resolution, but control resides with the judge or jury. Often, a judge or jury cannot legally provide solutions that emerge in mediation. Thus, mediation is more likely to produce a result that is mutually agreeable for the parties.
; Compliance : Because the result is attained by the parties working together and is mutually agreeable, compliance with the mediated agreement is usually high. This further reduces costs, because the parties do not have to employ an attorney to force compliance with the agreement. The mediated agreement is, however, fully enforceable in a court of law.
; Mutuality : Parties to a mediation are typically ready to work mutually toward a resolution. In most circumstances the mere fact that parties are willing to mediate means that they are ready to "move" their position. The parties thus are more amenable to understanding the other party's side and work on underlying issues to the dispute. This has the added benefit of often preserving the relationship the parties had before the dispute. Parties as a part of the mediation are encouraged to negotiate on the basis of interests rather than positions that they hold. The object of this is to have deeper conversations which can give rise to a wider ambit of solutions considering more than just the items up for discussion in the session. Some mediators are also of the opinion that it is their responsibility to bring the parties to think this way, commonly called interest-based negotiation.
; Support : Mediators are trained in working with difficult situations. The mediator acts as a neutral facilitator and guides the parties through the process. The mediator helps the parties think "outside of the box" for possible solutions to the dispute, broadening the range of possible solutions.

Uses

In addition to dispute resolution, mediation can function as a means of dispute prevention, such as facilitating the process of contract negotiation. Governments can use mediation to inform and to seek input from stakeholders in formulation or fact-seeking aspects of policy-making.
Mediation is applicable to disputes in many areas:
; Family:
  • Prenuptial/Premarital agreements
  • Financial or budget disagreements
  • Separation
  • Divorce
  • Alimony
  • Parenting plans
  • Eldercare
  • Family businesses
  • Adult sibling conflicts
  • Parent/adult children
  • Estates
  • Medical ethics and end-of-life
; Workplace:
; Commercial:
; Public disputes:
  • Environmental
  • Land-use
; Other:
Within business and commercial mediation, frequently a distinction is made between business-to-business, business-to-employee and business-to-consumer situations.

Industrial relations

Australia

ADR, Alternative Dispute Resolution, 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. 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. Conciliation has been the most prominently used form of ADR, and is generally far removed from modern mediation.
Significant changes in state policy took place from 1996 to 2007. The 1996 Workplace Relations Act sought to shift the industrial system away from a collectivist approach, where unions and the Australian Industrial Relations Commission had strong roles, to a more decentralized system of individual bargaining between employers and employees. The Act diminished the traditional role of the AIRC by placing the responsibility of resolving disputes at the enterprise level. This allowed mediation to be used to resolve industrial relations disputes instead of traditional conciliation.
In industrial relations under the 2006 WorkChoices amendments to the Workplace Relations Act. Examples of this use of mediation can be seen in recent enterprise bargaining negotiations.
The Australian government claimed the benefits of mediation to include the following:
  • Cost saving
  • Reduced polarization
  • Education
  • Broader issues vs the courts
  • Greater access to justice
  • More control by disputant over the process

    Workplace matters

The implementation of human resource management policies and practices has evolved to focus on the individual worker, and rejects all other third parties such as unions and AIRC. HRM together with the political and economic changes undertaken by Australia's Howard government created an environment where private ADR can be fostered in the workplace.
The decline of unionism and the rise of the individual encouraged the growth of mediation. This is demonstrated in the industries with the lowest unionization rates such as in the private business sector having the greatest growth of mediation.
The 2006 Work Choices Act made further legislative changes to deregulate industrial relations. A key element of the new changes was to weaken the AIRC by encouraging competition with private mediation.
A great variety of disputes occur in the workplace, including disputes between staff members, allegations of harassment, contractual disputes and workers compensation claims. 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 dispute resolution processes. However the complexity of relationships, involving hierarchy, job security and competitiveness can complicate mediation.
Party-directed mediation is an emerging mediation approach particularly suited for disputes between co-workers, colleagues or peers, especially deep-seated interpersonal conflict, multicultural or multiethnic disputes. The mediator listens to each party separately in a pre-caucus or pre-mediation before ever bringing them into a joint session. Part of the pre-caucus also includes coaching and role plays. The idea is that the parties learn how to converse directly with their adversary in the joint session. Some unique challenges arise when organizational disputes involve supervisors and subordinates. The negotiated performance appraisal is a tool for improving communication between supervisors and subordinates and is particularly useful as an alternate mediation model because it preserves the hierarchical power of supervisors while encouraging dialogue and dealing with differences in opinion.