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|Alternative Dispute Resolution|
Mediation, as used in law, is a form of alternative dispute resolution (ADR), a way of resolving disputes between two or more parties with concrete effects. Typically, a third party, the mediator, assists the parties to negotiate a settlement. Disputants may mediate disputes in a variety of domains, such as commercial, legal, diplomatic, workplace, community and family matters.
The term "mediation" broadly refers to any instance in which a third party helps others reach 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 the process.
Mediators use various techniques to open, or improve, dialogue between disputants, 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 committed to the discipline.
The benefits of mediation1 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(s) 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.
- 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.2
The activity of mediation appeared in very ancient times. Historians located early cases in Phoenician commerce. 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.citation needed
Some cultures regarded the mediator as a sacred figure, worthy of particular respect; and the role partly overlapped with that of traditional wise men or tribal chief. Members of peaceful communities frequently brought disputes before local leaders or wise men to resolve local conflicts.3 This peaceful method of resolving conflicts was particularly prevalent in communities of Confucians and Buddists.3
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:
- Prenuptial/Premarital agreements
- Financial or budget disagreements
- Parenting plans (child custody and visitation)
- Family businesses
- Adult sibling conflicts
- Parent(s)/adult children
- Medical ethics and end-of-life
- Homeowners' associations
- Medical malpractice
- Personal injury
- School conflicts
- Victim-Offender mediation
- Non-profit organizations
- Faith communities
Since the early 1980s a number of institutions have championed mediation. The Independent Mediation Service of South Africa (IMSSA) was established in 1984. It trained mediators who then worked through Local Dispute Resolution Committees set up as part of the National Peace Accord. Initial training was undertaken by the UK's ACAS. IMSSA covers mediation within unionised environments. The more recently created Commission for Conciliation, Mediation and Arbitration (CCMA) was formed as result of the Labour Relation Act No 66 1995, and replaced the Industrial Courts in handling large areas of employment disputes.
Informal processes that engage a community in more holistic solution-finding are growing.
After 1995, the country established a legal right to take an employment dispute to conciliation/mediation. Mediation agreements are binding in law. The process has grown from generally covering collective agreements such as for wages or terms and conditions, to encompass more individual matters including dismissal.
Mediation was not always successful. In a Southern Cape town case, mediation with two municipal unions did not restore relationships and led to a worse breakdown.
Mediation evolved to include Med/Arb, Con/Arb and Arb/Med.
ADR began in industrial relations in Australia long before the arrival of the modern ADR movement.4 One of the first statutes passed by the Commonwealth 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. 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 (Cth) sought to shift the industrial system away from a collectivist approach, where unions and the Australian Industrial Relations Commission (AIRC) had strong roles, to a more decentralized system of individual bargaining between employers and employees.5 The Act diminished the traditional role of the AIRC by placing the responsibility of resolving disputes at the enterprise level.6 This allowed mediation to be used to resolve industrial relations disputes instead of traditional conciliation.
Australia incorporated mediation extensively into family law and 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:7
- Cost saving
- Reduced polarization
- Broader issues vs the courts
- Greater access to justice
- More control by disputant over the process
The implementation of human resource management (HRM) policies and practices has evolved to focus on the individual worker, and rejects all other third parties such as unions and AIRC.8 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.9
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.10
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.11 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.11
Disputes involving neighbors often have no official resolution mechanism. Community mediation centers generally focus on neighborhood conflict, with trained local volunteers serving as mediators. Such organizations often serve populations that cannot afford to utilize the courts or professional ADR-providers. Community programs typically provide mediation for disputes between landlords and tenants, members of homeowners associations and small businesses and consumers. Many community programs offer their services for free or at a nominal fee.
Experimental community mediation programs using volunteer mediators began in the early 1970s in several major U.S. cities. These proved to be so successful that hundreds of programs were founded throughout the country in the following two decades. In some jurisdictions, such as California, the parties have the option of making their agreement enforceable in court.
A peer mediator resembles the disputants, such as being of similar age, attending the same school or having similar status in a business. Purportedly, peers can better relate to the disputants than an outsider.12
Peer mediation promotes social cohesion and aids development of protective factors that create positive school climates.13 The National Healthy School Standard (Department for Education and Skills, 2004) highlighted the significance of this approach to reducing bullying and promoting pupil achievement.12 Schools adopting this process recruit and train interested students to prepare them.
Peace Pals is an empirically validated peer mediation program.14 was studied over a 5-year period and revealed several positive outcomes including a reduction in elementary school violence and enhanced social skills, while creating a more positive, peaceful school climate.15
Peer mediation helped reduce crime in schools, saved counselor and administrator time, enhanced self-esteem, improved attendance and encouraged development of leadership and problem-solving skills among students. Such conflict resolution programs increased in U.S. schools 40% between 1991 and 1999.16
Peace Pals was studied in a diverse, suburban elementary school. Peer mediation was available to all students (N = 825). Significant and long-term reductions in school-wide violence over a five-year period occurred. The reductions included both verbal and physical conflict. Mediator knowledge made significant gains pertaining to conflict, conflict resolution and mediation, which was maintained at 3-month follow-up. Additionally, mediators and participants viewed the Peace Pals program as effective and valuable, and all mediation sessions resulted in successful resolution.15
Mediation was first applied to business and commerce.citation needed and this domain remains the most common application, as measured by number of mediators and the total exchanged value.citation needed The result of business mediation is typically a bilateral contract.
Commercial mediation includes work in finance, insurance, ship-brokering, procurement and real estate. In some areas, mediators have specialized designations and typically operate under special laws. Generally, mediators cannot themselves practice commerce in markets for goods in which they work as mediators.
Procurement mediation comprises disputes between a public body and a private body. In common law jurisdictions only regulatory stipulations on creation of supply contracts that derive from the fields of State Aids (EU Law and domestic application) or general administrative guidelines extend ordinary laws of commerce. The general law of contract applies in the UK accordingly. Procurement mediation occurs in circumstances after creation of the contract where a dispute arises in regard to the performance or payments. A Procurement mediator in the UK may choose to specialise in this type of contract or a public body may appoint an individual to a specific mediation panel.17
In response to the Mabo decision, the Australian Government sought to engage the population and industry on Mabo's implications for land tenure and use by enacting the Native Title Act 1993 (Cth), which required mediation as a mechanism to determine future native title rights. The process incorporated the Federal Court and the National Native Title Tribunal (NNTT). Mediation can occur in parallel with legal challenges, such as occurred in Perth.
Some features of native title mediation that distinguish it from other forms include lengthy 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.
Mediation's relevance in trans-border disputes is likely to be limited, Mediation explicitly requires that the parties identify themselves, that they participate willingly, that an overarching legal authority enforce the agreements that emerge and that they can overcome language and cultural differences, each of which presents an obstacle to mediation's success.
The mediator's primary role is to act as a neutral third party who facilitates discussions between the parties.18 In addition, the mediator can contribute to the process ensuring that all necessary preparations are complete (see Preparation).
Finally, the mediator should restrict pressure, aggression and intimidation, demonstrate how to communicate through employing good speaking and listening skills, and paying attention to non-verbal messages and other signals emanating from the context of the mediation and possibly contributing expertise and experience. The mediator should direct the parties to focus on issues and stay away from personal attacks.19
The role of the parties varies 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.20
The parties' first role is to consent to mediation, possibly before preparatory activities commence. Parties then prepare in much the same way they would for other varieties of negotiations. Parties may provide position statements, valuation reports and risk assessment analysis. The mediator may supervise/facilitate their preparation and may require certain preparations.
Agreements to mediate, mediation rules, and court-based referral orders may have disclosure requirements. Mediators may have express or implied powers to direct parties 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, including witness statements, valuations and statement accounts.
Mediation requires direct input from the parties. Parties must attend and participate in the mediation meeting. Some mediation rules require parties to attend in person. Participation at one stage may compensate for absence at another stage.
Choose an appropriate mediator, considering experience, skills, credibility, cost, etc.21 The criteria for mediator competence is under dispute. Competence certainly includes the ability to remain neutral and to move parties though various impasse-points in a dispute. The dispute is over whether expertise in the subject matter of the dispute should be considered or is actually detrimental to the mediator's objectivity.
Preparatory steps for mediation can vary according to legal and other requirements, not least gaining the willingness of the partis to participate.22
In some court-connected mediation programs, courts require disputants to prepare for mediation by making a statement or summary of the subject of the dispute and then bringing the summary to the mediation. In other cases, determining the matter(s) at issue can become part of the mediation itself.
Consider having the mediator meet the disputants prior to the mediation meeting. This can reduce anxiety, improve settlement odds and increase satisfaction with the mediation process.23
Ensure that all participants are ready to discuss the dispute in a reasonably objective fashion. Readiness is improved when disputants consider the viability of various outcomes.
Provide reasonable estimates of loss and/or damage.
Identify other participants. In addition to the disputants and the mediator, the process may benefit from the presence of counsel, subject-matter experts, interpreters, family, etc.
Secure a venue for each mediation session. The venue must foster the discussion, address any special needs, protect privacy and allow ample discussion time.
Ensure that supporting information such as pictures, documents, corporate records, pay-stubs, rent-rolls, receipts, medical reports, bank-statements, etc., are available.
Have parties sign a contract that addresses procedural decisions, including confidentiality, mediator payment, communication technique, etc.
The typical mediation has no formal compulsory elements, although some elements usually occur:
- establishment of ground rules framing the boundaries of mediation
- parties detail their stories
- identification of issues
- clarify and detail respective interests and objectives
- search for objective criteria
- identify options
- discuss and analyze solutions
- adjust and refine proposed solutions
- record agreement in writing
Individual mediators vary these steps to match specific circumstances, given that the law does not ordinarily govern mediators' methods.
|This section does not cite any references or sources. (October 2006)|
Ratification and review provide safeguards for mediating parties. They also provide an opportunity for persons not privy to the mediation to undermine the result. Some mediated agreements require ratification by an external body—such as a board, council or cabinet. In some situations the sanctions of a court or other external authority must explicitly endorse a mediation agreement. Thus if a grandparent or other non-parent is granted residence rights in a family dispute, a court counselor will be required to furnish a report to the court on merits of the proposed agreement to aid the court's ultimate disposition of the case. In other situations it may be agreed to have agreements reviewed by lawyers, accountants or other professional advisers.
The implementation of mediated agreements must comply with the statues and regulations of the governing jurisdiction.
Parties to a private mediation may also wish to obtain court sanction for their decisions. Under the Queensland regulatory scheme on court connected mediation, mediators are required to file with a registrar a certificate about the mediation in a form prescribed in the regulations. A party may subsequently apply to a relevant court an order giving effect to the agreement reached. Where court sanction is not obtained, mediated settlements have the same status as any other agreements.
Mediators may at their discretion refer one or more parties to psychologists, accountants, social workers or others for post-mediation professional assistance.
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.
Mediation recognized that in addition to the fact of reaching a settlement, party satisfaction and mediator competence could be measured. Surveys of mediation parties reveal strong levels of satisfaction with the process.24 Of course, if parties are generally satisfied post-settlement, then such measures may not be particularly explanatory.
The educational requirements for accreditation as a mediator differ between accrediting groups and from country to country. In some cases legislation mandates requirements; in others professional bodies impose accreditation standards. Many US universities offer graduate studies in mediation, culminating in the PhD or DMed degrees.
In Australia, for example, professionals wanting to practice 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 10 hours of supervised mediation. Furthermore, they must also undertake 12 hours of 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. Not all kinds of mediation-work require academic qualifications, as some deal more with practical skills than with theoretical knowledge. Membership organizations provide training courses. Internationally a similar approach to the training of mediators is taken by organizations such as the Centre for Effective Dispute Resolution.
No legislated national standards on the level of education apply to all practitioner’s organizations. However, organizations such as the National Alternative Dispute Resolution Advisory Council (NADRAC) 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.
Common elements of codes of conduct include:
- informing participants as to the process of mediation
- adopting a neutral stance
- revealing any potential conflicts of interest
- maintaining confidentiality within the bounds of the law
- mindfulness of the psychological and physical wellbeing of all participants
- directing participants to appropriate sources for legal advice
- engaging in ongoing training
- pracising only in those fields in which they have expertise.
In Australia mediation codes of conduct include those 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. The CPR/Georgetown Ethics Commission, the Mediation Forum of the Union International des Avocats, and the European Commission have promulgated codes of conduct for mediators.
In France, professional mediators have created an organization to develop a rational approach to conflict resolution. This approach is based on a "scientific" definition of a person and a conflict. These definitions help to develop a structured mediation process. Mediators have adopted a code of ethics which guarantees professionalism.25
A range of organizations within Australia accredit mediators. Standards vary according to the specific mediation and the level of specificity that is desired. Standards apply to particular ADR processes.
The National Mediator Accreditation System (NMAS) commenced operation on 1 January 2008. It is an industry-based scheme which relies on voluntary compliance by mediator organisations that agree to accredit mediators in accordance with the requisite standards.26
Mediator organizations have varying ideals of what makes a good mediator which reflect the training and accreditation of that particular organization. Australia did not adopt a national accreditation system, which may lead to suboptimal choice of mediators.
|This section does not cite any references or sources. (October 2006)|
Mediator selection is of practical significance given varying models of mediation, mediators' discretion in structuring the process and the impact of the mediator's professional background and personal style on the result.
In community mediation programs the director generally assigns mediators. In New South Wales, for example, when the parties cannot agree on a mediator, the registrar contacts a nominating entity, such as the Bar Association which supplies the name of a qualified and experienced mediator.
As of 2006, formal mechanisms for objecting to the appointment of a particular mediator had not been established. Parties could ask the mediator to withdraw for reasons of conflict of interest. In some cases, legislation establishes criteria for mediators. In New South Wales, for example, the Family Law Act 1975 (Cth) proscribes qualifications for mediators.
The following are useful criteria for selecting a mediator:
- Personal attributes—patience, empathy, intelligence, optimism and flexibility
- Qualifications—knowledge of the theory and practice of conflict, negotiation and mediation, mediations skills.
- Experience— mediation experience, experience in the substantive area of dispute and personal life experience
- Professional background
- Certification and its value
- Suitability of the mediation model
- Conflicts of interest
Contracts that specify mediation may also specify a third party to suggest or impose an individual. Some third parties simply maintain a list of approved individuals, while others train mediators. Lists may be “open” (any person willing and suitably qualified can join) or a “closed” panel (invitation only).
In the UK and internationally, lists are generally open, such as The Chartered Institute of Arbitrators, the Centre for Dispute Resolution. Alternatively, private panels co-exist and compete for appointments e.g.,Savills Mediation.27
Legal liability may stem from a mediation. For example, a mediator could be liable for misleading the parties or for even inadvertently breaching confidentiality. Despite such risks, follow-on court action is quite uncommon. Only one case reached that stage in Australia as of 2006. Damage awards are generally compensatory in nature. Proper training is mediators' best protection.
Liability can arise for the mediator from Liability in Contract; Liability in Tort; and Liability for Breach of Fiduciary Obligations.
Liability in Contract arises if a mediator breaches (written or verbal) contract with one or more parties. The two forms of breach are failure to perform and anticipatory breach. Limitations on liability include the requirement to show 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 negligent. To be awarded damages, the party must show actual damage, and must show that the mediator's actions (and not the party's actions) were the actual cause of the damage.
Liability for Breach of Fiduciary Obligations can occur if parties misconceive their relationship with a mediator as something other than neutrality. Since such liability relies on a misconception, court action is unlikely to succeed.
As of 2008 Tapoohi v Lewenberg was the only case in Australia that set a precedent for mediators' liability.
The case involved two sisters who settled an estate via mediation. Only one sister attended the mediation in person: the other participated via telephone with her lawyers present. An agreement was executed. At the time it was orally expressed that before the final settlement, taxation advice should be sought as such a large transfer of property would trigger capital gains taxes.
Tapoohi paid Lewenberg $1.4 million dollars in exchange for land. One year later, when Tapoohi realized that taxes were owed, she sued her sister, lawyers and the mediator based on the fact that the agreement was subject to further taxation advice.
The original agreement was verbal, without any formal agreement. Tapoohi, a lawyer herself, alleged that the mediator breached his contractual duty, given the lack of any formal agreement; and further alleged tortious breaches of his duty of care.
Although the court dismissed the summary judgment request, the case established that mediators owe a duty of care to parties and that parties can hold them liable for breaching that duty of care. Habersberger J held it "not beyond argument" that the mediator could be in breach of contractual and tortious duties. Such claims were required to be assessed at a trial court hearing.clarification needed
This case emphasized the need for formal mediation agreements, including clauses that limit mediators' liability.
Within the United States, the laws governing mediation vary by state. Some states have clear expectations for certification, ethical standards and confidentiality. Some also exempt mediators from testifying in cases they've worked on. However, such laws only cover activity within the court system. Community and commercial mediators practising outside the court system may not have such legal protections. State laws regarding lawyers may differ widely from those that cover mediators. Professional mediators often consider the option of liability insurance.
Evaluative mediation is focused on providing the parties with an evaluation of their case and directing them toward settlement. During an evaluative mediation process, when the parties agree that the mediator should do so, the mediator will express a view on what might be a fair or reasonable settlement. The Evaluative mediator has somewhat of an advisory role in that s/he evaluates the strengths and weaknesses of each side's argument and makes some predictions about what would happen should they go to court. Facilitative and transformative mediators do not evaluate arguments or direct the parties to a particular settlement.
Facilitative mediators typically do not evaluate a case or direct the parties to a particular settlement. Instead, the Facilitative mediator facilitates the conversation. These mediators act as guardian of the process, not the content or the outcome. During a facilitative mediation session the parties in dispute control both what will be discussed and how their issues will be resolved. Unlike the transformative mediator, the facilitative mediator is focused on helping the parties find a resolution to their dispute and to that end, the facilitative mediator provides a structure and agenda for the discussion.
Transformative mediation looks at conflict as a crisis in communication. Success is not measured by settlement but by the parties shifts toward (a) personal strength, (b) interpersonal responsiveness, (c) constructive interaction, (d) new understandings of themselves and their situation, (e) critically examining the possibilities, (f) feeling better about each other, and (g) making their own decisions. Those decisions can include settlement agreements or not. Transformative mediation practice is focused on supporting empowerment and recognition shifts, by allowing and encouraging deliberation, decision-making, and perspective-taking. A competent transformative mediator practices with a microfocus on communication, identifying opportunities for empowerment and recognition as those opportunities appear in the parties' own conversations, and responding in ways that provide an opening for parties to choose what, if anything, to do with them.
Mediation has sometimes been utilized to good effect when coupled with arbitration, particularly binding arbitration, in a process called 'mediation/arbitration'. The process begins as a standard mediation, but if mediation fails, the mediator becomes an arbiter.
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 no coercive power over the parties or the outcome. The parties awareness that the mediator might later act in the role of judge could distort the process. Using a different individual as the arbiter addresses this concern.
Online mediation employs online technology to provide disputants access to mediators and each other despite geographic distance, disability or other barriers to direct meeting. Online approaches also facilitate mediation when the value of the dispute does not justify the cost of face-to-face contact. Online mediation can also combine with face-to-face mediation—to allow mediation to begin sooner and/or to conduct preliminary discussions.
Mediation is one of several approaches to resolving disputes. It differs from adversarial resolution processes by virtue of its simplicity, informality, flexibility, and economy.
- All parties' are ready and willing to participate.
- All (or no) parties have legal representation. Mediation includes no right to legal counsel.
- All parties are of legal age (although see peer mediation) and are legally competent to make decisions.
Conciliation sometimes serves as an umbrella-term that covers mediation and facilitative and advisory dispute-resolution processes.30 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 ensure that agreements comply with relevant statutory frameworks. Therefore conciliation may include an advisory aspect.
Mediation is purely facilitative: the mediator 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.31
Both mediation and conciliation work to identify the disputed issues and to generate options that help disputants reach a mutually satisfactory resolution. They both offer relatively flexible processes. Any settlement reached generally must 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.
A counsellor generally uses therapeutic techniques. Some—such as a particular line of questioning—may be useful in mediation. But the role of the counsellor differs from the role of the mediator. The list below is not exhaustive but it gives an indication of important distinctions:
- A mediator aims for clear agreement between the participants as to how they will deal with specific issues. A counsellor is more concerned with the parties gaining a better self-understanding of their individual behaviour.
- A mediator, while acknowledging a person’s feelings, does not explore them in any depth. A counsellor is fundamentally concerned about how people feel about a range of relevant experiences.
- A mediator focuses upon participants' future goals rather than a detailed analysis of past events. A counsellor may find it necessary to explore the past in detail to expose the origins and patterns of beliefs and behaviour.
- A mediator controls the process but does not overtly try to influence the participants or the actual outcome. A counsellor often takes an intentional role in the process, seeking to influence the parties to move in a particular direction or consider specific issues.
- A mediator relies on all parties being present to negotiate, usually face-to-face. A counsellor does not necessarily see all parties at the same time.
- A mediator is required to be neutral. A counsellor may play a more supportive role, where appropriate.
- Mediation requires both parties to be willing to negotiate. Counselling may work with one party even if the other is not ready or willing to participate.
- Mediation is a structured process that typically completes in one or a few sessions. Counselling tends to be ongoing, depending upon participants' needs and progress.
The technique of early neutral evaluation (ENE)32 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.
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.
Binding Arbitration is a more direct substitute for the formal process of a court. Binding Arbitration is typically conducted in front of one or three arbitrators. The process is much like a mini trial with rules of evidence, etc. Arbitration typically proceeds faster than court and typically at a lower cost. The Arbiter makes the ultimate decision rather than the parties. Arbiters' decisions are typically final and appeals are rarely successful even if the decision appears to one party to be completely unreasonable.33
In litigation, courts typically impose binding decisions on the disputing parties.28 Courts in some cases refer litigants to mediation. Mediation is typically less costly, less formal and less complex. Unlike courts, mediation does not ensure binding agreements and the mediator does not decide the outcome.
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.
Mediation can anticipate difficulties between parties before conflict emerges. Complaint handling and management is a conflict prevention mechanism designed to handle a complaint effectively at first contact, minimising the possibility of a dispute. One term for this role is “dispute preventer”.34
One of the hallmarks of mediation is that the process is strictly confidential. Two competing principles affect confidentiality. One principle encourages confidentiality to encourage people to participate, while the second principle states that all related facts should be available to courts.
The mediator must inform the parties of their responsibility for confidentiality.
Steps put in place during mediation to help ensure this privacy include:
- All sessions take place behind closed doors.
- Outsiders can observe proceedings only with both parties' consent.
- The meeting is not recorded.
- Publicity is prohibited.
Confidentiality is a powerful and attractive feature of mediation.35 It lowers the risk to participants of disclosing information and emotions and encourages realism by eliminating the benefits of posturing. In general, information discussed in mediation cannot be used as evidence in the event that the matter proceeds to court, in accord with the mediation agreement and common law.36
Few mediations succeed unless the parties can communicate fully and openly without fear of compromising a potential court case. The promise of confidentiality mitigates such concerns.37 Organisations often see confidentiality as a reason to use mediation in lieu of litigation, particularly in sensitive areas. This contrasts with the public nature of courts and other tribunals. However mediation need not be private and confidential.38 In some circumstances the parties agree to open the mediation in part or whole. Laws may limit confidentiality. For example mediators must disclose allegations of physical or other abuse to authorities. The more parties in a mediation, the less likely that perfect confidentiality will be maintained. Some parties may even be required to give an account of the mediation to outside constituents or authorities.38
Most countries respect mediator confidentiality.
The without-prejudice privilege in common law denotes that in honest attempts to reach settlement, any offers or admissions cannot be used in court when the subject matter is the same. This applies to the mediation process. The rule comes with exceptions.
The privilege is visible in 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 properly audit their accounts. Mediation failed to produce an agreement. During 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 had given this information without prejudice preventing its use in court.
During the subsequent litigation Daniels asked for a copy of the indemnity deed. AWA Ltd claimed privilege, but the presiding Rolfe J, admitted the document. 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 was excluded by either party or if the privilege was waived in proceedings. Although mediation is private and confidential, the disclosure of privileged information in the presence of a mediator does not represent a waiver of the privilege.
Parties who enter into mediation do not forfeit legal rights or remedies. If mediation does not result in settlement, each side can continue to enforce their rights through appropriate court or tribunal procedures. However, if mediation produces a settlement, legal rights and obligations are affected in differing degrees. In some situations, the parties may accept a memorandum or moral force agreement; these are often found in community mediations. In other instances, a more comprehensive deed of agreement, when registered with a court, is legally binding. It is advisable to have a lawyer draft or provide legal advice about the proposed terms.39
"Court systems are eager to introduce mandatory mediation as a means to meet their needs to reduce case loads and adversarial litigation, and participants who understand the empowerment of mediation to self-determine their own agreements are equally as eager to embrace mediation as an alternative to costly and potentially harmful litigation."40
Principles of mediation include non-adversarialism, responsiveness, self-determination and party autonomy.
Non-adversarialism is based on the actual process of mediation. It treats the parties as collaborating in the construction of an agreement. By contrast, litigation is explicitly adversarial in that each party attempts to subject the other to its views. Mediation is designed to conclude with an agreement rather than a winner and loser.
Responsiveness reflects the intent to allow the parties to craft a resolution outside of the strict rules of the legal system. A responsive mediation process also is informal, flexible and collaborative.
Self-determination and party autonomy allow and require parties to choose the area of agreement, rather than ceding the decision to an outside decision-maker such as a judge. This turns the responsibility for the outcome onto the parties themselves.
Theorists, notably Rushworth Kidder, claimed that mediation is the foundation of a 'postmodern') ethics—and that it sidesteps traditional ethical issues with pre-defined limits of morality.clarification needed
Mediation can also be seen as a form of harm reduction or de-escalation, especially in its large-scale application in peace and similar negotiations, or the bottom-up way it is performed in the peace movement where it is often called mindful mediation. This form derived from methods of Quakers in particular.clarification needed
Society perceives conflict as something that one should resolve as quickly as possible.41 Mediators see conflict as a fact of life that when properly managed can benefit the parties.154142 The benefits of conflict include the opportunity to renew relationships and make positive changes for the future.43
- Conflict Management Style
- Conflict resolution research
- Conflict Style Inventory
- Family therapy
- Intercultural competence
- Lawyer supported mediation
- Liaison Officer
- Life coaching
- National Arbitration Forum
- Nonviolent communication
- UN Peacemaker
- See, www.synergymedmw.com, www.mediation.com, www.mediate4you.com and www.mediate4u.info for more information on the mediation process.
- "A Short History of Mediation | CFR Mediation Services". Cfrmediation.com. 2009-03-29. Retrieved 2012-03-12.
- Boulle 2005, p. 286
- Bamber & et. al. 2000, p. 43
- Boulle 2005, p. 287
- Van Gramberg 2006, p. 11
- Van Gramberg 2006, p. 173
- Bamber & et. al. 2000, p. 45
- Van Gramberg 2006, p. 174
- Boulle 2005, p. 298
- Noaks, J. & Noaks, L. (2009). "School-based peer mediation as a strategy for social inclusion". Pastoral Care In Education 27 (1): 53–61.
- Cremin 2007, p. 119
- Schellenberg, Parks-Savage & Rehfuss 2007 The program's creator is Dr. Rita Schellenberg, counselor educator, counselor supervisor, and licensed school counselor.
- Schellenberg, Parks-Savage & Rehfuss 2007
- Gerber, S 1999, 'Does peer mediation really work?', Professional School Counseling, 2, 3, 169
- For example, Savills Mediation)
- Nelson, Lisa. "What is A Divorce Mediator". Mediation Blog. Lisa Nelson. Retrieved 29 July 2012.
- In New South Wales the Law Society has published A guide to the rights and Responsibilities of participants.
- "What is Family Mediation?". Retrieved 5 October 2011.
- To assist parties in preparing for commercial mediations, particularly in cross-border disputes where there can be very different understandings of the word "mediation" and the mediation process, the International Mediation Institute has posted an online evaluation form (called OLE!), which is designed to be used by parties working together with their counsel. "International Mediation Institute OLE! evaluation form". Retrieved 1 March 2012.
- Zutter, Deborah. Preliminary Mediation Practices. Bond University, Australia:Unpublished Thesis, 2004.
- Boulle 2005, p. 88
- Code de la Médiation pour l'orientation de la médiation, Agnès Tavel, Médiateurs Editeurs, 2009.
- "NADRAC". NADRAC. 2008-01-01. Retrieved 2012-03-12.
- "Savills Mediation". Savills.co.uk. Retrieved 2012-05-02.
- Boulle 2005
- The International Mediation Institute has a decision tree on its website, which is designed to help the parties to jointly select the most suitable mediator out of several neutrals who have all achieved certain level of professional competency. "International Mediation Institute Decision Tree". Retrieved 1 March 2012.
- Simkin, W. E., (1971); Mediation and the Dynamics of Collective Bargaining; Bureau of National Affairs Books, Washington DC, ISBN 0-87179-127-7
- The Institute of Arbitrators and Mediators, Australia, retrieved 2007-11-24
- "ENE". Adr.cand.uscourts.gov. Retrieved 2012-05-02.
- Mediation vs Arbitration - Mediation, Arbitration, Divorce and ADR Services, retrieved 2010-08-27
- Charlton 2000, p. 4
- Van Gramberg 2006, p. 38
- Spencer & Altobelli 2005, p. 261
- Charlton & Dewdney 2004, p. 344
- Boulle 2005, p. 539
- Charlton & Dewdney 2004, p. 126
- Spencer & Altobelli 2005, p. 223
- Boulle 2005, p. 87
- Bagshaw 1999, p. 206
- Bradford 2006, p. 148
||This article includes a list of references, but its sources remain unclear because it has insufficient inline citations. (June 2008)|
- Agardy, Peter (2009), 'Mediation and the insolvency practitioner,' Insolvency Law Journal, Thomson Reuters, Vol 17. No.3, September, Pages 135-146.
- Boulle (2005). Mediation: Principles Processes Practice, Australia. Butterworths.
- Cremin, H. (2007). Peer Mediation: Citizenship and Social Inclusion in Action. Maidenhead: Open University Press.
- Charlton, R. (2000). Dispute Resolution Guidebook (2 Ligare Pty Ltd, Riverwood NSW ed.). Erskineville NSW: Star Printery Pty Ltd,.
- Charlton, R.; Dewdney, M. (2004). The Mediator’s Handbook. Skills and Strategies for Practitioners.
- Domenici, Kathy, & Littlejohn, Stephen W. (2001), Mediation empowerment in conflict management. Prospect Heights, IL: Waveland Press, Inc.
- (French) Fathi Ben Mrad: Sociologie des pratiques de médiation : Entre principes et compétences,Paris, France, édition L'Harmattan, 2002. - ISBN 2-7475-2968-1
- Flemisch, Christiane A.: "Streitbeilegung im internationalen Geschäft. Einführung in die Mediation als Methode der Streitbeilegung", in Außenwirtschaftliche Praxis (AW-Prax), 2006, Heft 2.
- Flemisch, Christiane A.: Wirtschaftsmediation im Zeitalter der Globalisierung – Besonderheiten bei interkulturellen Wirtschaftsmediationen, in IDR, 2006 Heft 1.
- Folberg, J. & Taylor, A. (1984) Mediation: A comprehensive guide to resolving conflicts without litigation, San Francisco, Jossey-Bass Publishers.
- (French) Lascoux Jean Louis, 2001, 2007. Pratique de la mediation. esf editeur. Paris, 4°ed. 2007
- (French) Lascoux Jean Louis, 2008. Et tu deviendras médiateur et peut-être philosophe. Ed. Médiateurs. Bordeaux, 2008
- Larsson, Liv (2011). A Helping Hand, Mediation with Nonviolent Communication. Friare Liv Konsult. p. 258. ISBN 91-976672-7-7.
- McConnell, J. A. (2001): Mindful mediation: A handbook for buddhist peacemakers. Dehiwala, Buddhist Cultural Centre.
- Palermo G., (2005) (Italy), La violenza intrafamiliare tra diritto e mediazione, La città del sole, Napoli, ISBN 88-8292-285-5
- Palermo G. (2009) (Italy), Prospettive socio-giuridiche della mediazione penale in Italia. Analisi comparativa con la Spagna, Nuova edizione ampliata ed aggiornata, Edizioni Labrys, ISBN 978-88-95931-03-6
- Parselle, Charles (2005) The Complete Mediator. New York: Weisberg Publications.
- Schellenberg, R.; Parks-Savage, A.; Rehfuss, M. (2007). "Reducing levels of elementary school violence with peer mediation". Professional School Counseling 10: 475–481.
- Sourdin, T. (2002) Alternative Dispute Resolution, Pyrmont NSW, Lawbook Co.
- Spencer, D.; Altobelli, T. (2005). Dispute Resolution in Australia. Cases, Commentary and Materials. Riverwood NSW: Ligare Pty Ltd.
- (French) Tavel Agnès et Jean-Louis Lascoux. Code de la Médiation annoté et comenté pour orienter la Médiation, Médiateurs Editeurs, Bordeaux France, 2008–2009
- Winslade, J. & Monk, G. 2000. Narrative Mediation: A New Approach to Conflict Resolution. San Francisco: Jossey-Bass Publishers.
- Zhao, X., Lynch, J. G., & Chen, Q. (2010) Reconsidering Baron and Kenny: Myths and Truths about Mediation Analysis. Journal of Consumer Research, 37, 197-206. (Preprint available PDF
- Cultivating Performance
1Zutter, Deborah. Preliminary Mediation Practices. Bond University, Australia:Unpublished Thesis, 2004.
- Boulle, Laurence (1996). Mediation: Principles, Process, Practise. Sydney: Butterworths. ISBN 0-406-92747-2.
- Ruth, Charlton (2000). Dispute Resolution Guidebook. New South Wales: Prymont. ISBN 0-455-21747-5.
- Lancken, Stephen (2000). "The Preliminary Conference: Option or Necessity?". Australian Dispute Resolution Journal 196 (11).
- Zutter, Deborah (1999). "Mediation in the Shadow of Abuse". The Advocate 867.
- Framework for ADR Standards
- Development of Standards
- Boulle, L. (2005). Mediation: Principles Processes Practices. LexisNexis Butterworths. p 348.