Mediation

Mediation is an informal and confidential way for people to resolve disagreements with the help of a trained mediator. The mediator acts as a neutral third party, facilitates discussion, and does not decide who is right or wrong or issue a decision. The purpose of mediation is to minimize the harm that can come from disagreement and to prevent the areas of dispute from interfering with the process of seeking a compromise or mutually agreed outcome. Mediation can be used on every scale of problems, and participation is typically voluntary. Mediators use different techniques to open or enhance dialogue and empathy between contenders, aiming to help the parties reach an agreement. Much depends on the mediator's skill and training. As the practice gained popularity, training programs, certifications, and licensing followed, producing trained, professional mediators devoted to the discipline. Benefits of mediation include cost, confidentiality, control, compliance, mutuality, and support.

Brief history

The history of mediation goes back to antiquity, with early cases located by historians in Phoenician commerce. The practice developed in Ancient Greece and then in Roman civilization. The term mediator originates in the letters of Saint Paul written in Greek in the first century CE, and in the next century, the term was used in Latin. Some cultures regarded the mediator as a sacred figure worthy of particular respect. Members of peaceful communities frequently brought disputes before local leaders or wise men to resolve local conflicts. This peaceful method was particularly prevalent in communities of Confucians and Buddhists, where tradition encouraged dispute resolution through compromise rather than coercion. Islamic culture also has a strong tradition of mediation, with judges specializing in preserving social harmony. In the West, churches were often used as places of sanctuary, and Christian clergy acted as mediators between criminals and authorities. They were also involved in disputes between families and diplomatic disputes. Similarly, rabbinical courts used traditions and the Torah to settle disputes. In the United States, the Quakers have a long history of practicing mediation, the early US model of mediation being based on their work. In New York City, the Jewish community established its own mediation forum, and Chinese immigrants established the Chinese Benevolent Society to resolve disputes within the family and within the community by mediation.

In the twentieth century, with the introduction of competencies, regulation, and institutionalization of conflict resolution, mediation was secularized, and it began to be recognized as having a role in settling civil disputes. As early as 1896, the Conciliation Act relating to the conduct of industrial relations was enacted in the United Kingdom, bringing a major development. In the United States, mediation evolved in response to labor unrest in the early twentieth century and social unrest from the mid-century. Courts began using it in the 1970s. During the 1980s and 1990s, court- and community-based programs were created and expanded, offering mediation as an alternative that allowed party self-determination, creative solutions, and a quicker response. Starting in the 1950s, an increased interest in research entailed the development of new models of mediation.

Overview

Together with arbitration, mediation is a major form of alternative dispute resolution (ADR), which refers to any means of solving disagreements outside the courtroom. Mediators are most commonly single individuals, but they also can be twosomes, threesomes, or even larger groups. They often are individuals with no authority or right to impose an agreement, but this is not always the case. Some mediators have considerable power, as does the United States, when it lends assistance in a dispute among its allies. Others, such as judges who mediate civil cases during the meetings that precede the trial, have the authority to give a binding decision if a settlement is not reached during mediation. Usually, the mediator merely aids in the resolution of the dispute by guiding the parties, encouraging exchanges of information, promoting a productive level of emotional expression, and dealing with different perceptions and interests between the parties. The strategies used by mediators differ somewhat, but the process is always informal and conversational.

The typical mediation has no compulsory elements, but usually, the following actions occur: establishment of ground rules, details of the story are given by the parties, the issues are identified, the interests and objectives are clarified, a search for objective criteria is performed, the options are identified, the solutions are discussed and analyzed, then adjusted and refined, and an agreement is written. These steps can vary to match specific circumstances.

A mediator is generally selected based on personal attributes (e.g., flexibility, patience, empathy), training and qualifications, professional experience, absence of conflicts of interest, and cost. The common codes of conduct a mediator must respect include informing participants as to the process of mediation, adopting a neutral attitude, revealing any potential conflicts of interest, maintaining confidentiality, considering the psychological and physical comfort of all participants, directing the parts to appropriate sources for legal advice, engaging in ongoing training, and practicing only in those fields in which they have expertise.

Mediation is one of several approaches to resolving disputes, along with counseling, arbitration, early neutral evaluation, and negotiation. It differs from adversarial resolution processes by virtue of its simplicity, informality, flexibility, and economy. Not all disputes can be solved through mediation, and success is not possible unless parties are ready and willing to participate, all (or no) parties have legal representation, mediation includes no right to legal counsel, and all parties are of legal age and are competent to make decisions.

Starting with the second part of the twentieth century, mediation began to play a role at all levels of society in virtually every significant area of social conflict. Some developments include public sector labor mediation, community mediation, public resource mediation, and judicial mediation, mediation being used for a wide range of case-types ranging from juvenile felonies to government negotiations with Indigenous populations. Mediation has also become a significant method for resolving disputes between investors and their stockbrokers. In the securities industry, mediators can provide unbiased expertise that may help to resolve disputes.

Bibliography

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