Mediation: Encyclopedia II - Mediation - Global relevance

Mediation - Global relevance

The rise of international trade law, continental trading blocs, the World Trade Organization (and its opposing anti-globalization movement), use of the Internet, among other factors, seem to suggest that legal complexity has started to reach to an intolerable and undesirable point. There may be no obvious way to determine which jurisdiction has precedence over which other, and there may be substantial resistance to settling a matter in any one place.

Accordingly, mediation may come into more widespread use, replacing formal legal and judicial processes sanctified by nation-states. Some, like the anti-globalization movement, believe such formal processes have quite thoroughly failed to provide real safety and closure guarantees that are pre-requisite to uniform rule of law.

Following an increasing awareness of the process, and a wider notion of its main aspects and eventual effects, mediation is in recent times frequently proposed as a form of resolution of international disputes, with attention to belligerent situations too.

However, as mediation ordinarily needs to be required by the interested parties and it would be very difficult to impose it, in case one of the parts refuses this process it cannot be a solution.

Mediation - Fairness

As noted, mediation can only take place in an atmosphere where there is some agreement on safety, fairness and closure, usually provided by nation-states and their legal systems. But increasingly disputes transcend those borders and include many parties who may be in unequal-power relationships.

In such circumstances, with many parties afraid to be identified or to make formal complaints, terminology or rules of standing or evidence slanted against some groups, and without power to enforce even "legally binding" contracts, some conclude that the process of mediation would not reasonably be said to be 'fair'.

Accordingly, even when it is offered and attempts are made to make it fair, mediation itself might not be a fair process, and other means might be pursued.

On 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).

On a more general point, given that mediation ordinarily produces agreements containing elements to enforce the pacts with facts that can grant its effectiveness, one should note that the legal system is not the only means that will ensure protection of the pacts: modern mediation frequently tends to define economical compensations and warranties too, generally considered to be 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.

Adapted from the Wikipedia article "Global relevance", under the G.N U Free Docmentation License. Please also see http://en.wikipedia.org/wiki