Mediation: Encyclopedia II - Mediation - Mediation as a method of dispute resolution

Mediation - Mediation as a method of dispute resolution

In the field to resolving legal controversies, mediation is 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, agreements between the parties can (usually with assistance from legal counsel) be committed to writing and signed, thus rendering a legally binding contract in some jurisdiction specified therein.

Mediation differs from most other conflict resolution processes by virtue of its simplicity, and 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.

Mediation - Safety fairness closure

These broader political methods usually focus on conciliation, preventing future problems, rather than on focused dispute-resolution of one matter.

Mediation can be reasonably seen as the simplest of many such processes, where there is no great dispute about political context, 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.

If some warranty of safety, fairness, and closure can be assumed, then the process can reasonably be called 'mediation proper', and be described thus:

Mediation - Process and role of the mediator in US practice

Generally, the process consists of the following stages;

• (a) an introduction by the mediator that includes establishing ground rules suggested by the mediators and the parties;
• (b) the parties' 'telling their stories' in an uninterrupted manner;
• (c) the mediator's asking questions to clarify the issues;
• (d) the mediator's discovery of the parties' underlying interests/concerns related to the issues;
• (e) the parties' generation of options that may resolve the dispute;
• (f) the reality-testing of the options, leading to one option that best resolves the issues for all parties; and
• (g) memorialization of the resulting agreement in writing.

The role of the mediator is to guide this process.

People have used mediation extensively in virtually every type of conflict situation, ranging from commercial and family cases, to criminal matters involving juvenile and adult offenders meeting with victims to negotiate restitution. Mediation is increasingly ordered by judges in court cases where a collaborative approach to resolving a conflict is viewed as advantageous to the traditional adversarial process. In family cases, setting parties on a path of collaborative problem-solving is viewed as superior to traditional approaches where children, in particular, are harmed by the effects of protracted litigation.

Mediation - 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.

Mediation - Mediator liability

The role of mediator is less controversial than the role of judge, if only because a mediator may only propose, rather than impose, a contract.

The assumed moral or legal responsibility, or even liability, of the mediator differs drastically in different methods - for instance, in global political negotiations, it is often difficult to find anyone who is sufficiently trusted by both sides to even get a peace process to begin. Accordingly, liability is not assigned to the mediator no matter how badly things go wrong - doing so would discourage future efforts to help.

Note the differences between the legal definition of civil mediation in the United States and mediation in other countries. Compared with ther 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. These differences are best understood in a more global context of variances between countries.

Even within the United States, the laws governing mediation varies greatly on a state-by-state basis. Some states have fairly sophisticated laws concerning mediation, incluidng clear expectations for certification, ethical standards, and protections that ensure a mediator not be called to testify in a case they've worked on (preserving the confidential nature of mediation). 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 practicing outside the court system may very well not have these same sorts of legal protections.

Liability insurance is often an option professional mediators consider. It has traditionally been marketed through professional dispute resolution organizations.

Adapted from the Wikipedia article "Mediation as a method of dispute resolution", under the G.N U Free Docmentation License. Please also see http://en.wikipedia.org/wiki