Mediation is a dynamic, structured, interactive process where an impartial third party assists disputing parties in resolving conflict through the use of specialized communication and negotiation techniques.
It is an informal, voluntary, and confidential form of conflict resolution which allows a third party to assist in resolving a legal conflict between two parties. It is often used in divorce and allows a settlement without going to trial.
In mediation, a trained mediator helps people in conflict discuss concerns and, when possible, decide a fair solution. The benefit of mediation is it allows for a mediator, who is a neutral person, to help parties discuss their conflicts. The mediator, however, does not decide who “wins” or “loses.”
Mediation allows for a third party to evaluate each party’s side, identify the issues, discuss the party’s needs and help each party talk about solutions. Mediation can be done together with each party or independently. The benefit of mediation is can save cost and time over going to trial. Some conflicts will require each party to attempt mediation prior to trial.
Intervention in a dispute in order to resolve it; arbitration. n. the attempt to settle a legal dispute through the active participation of a third party (mediator) who works to find points of agreement and make those in conflict agree on a fair result. Mediation differs from arbitration, in which the third party (the arbitrator) acts much like a judge in an out-of-court, less formal setting but does not actively participate in the discussion. Mediation has become very common in trying to resolve domestic relations disputes (divorce, child custody, visitation) and is often ordered by the judge in such cases.
Mediation has also become more frequent in contract and civil damage cases. There are professional mediators or lawyers who do some mediation for substantial fees, but the financial cost is less than fighting the matter out in court and may achieve an early settlement and an end to anxiety. However, mediation does not always result in a settlement.
- Negotiation to resolve differences is conducted by an impartial party.
- The act of intervening for the purpose of bringing about a settlement.
A dispute resolution method designed to help warring parties resolve their own dispute without going to court. In mediation, a neutral third party (the mediator) meets with the opposing sides to help them find a mutually satisfactory solution. Unlike a judge in her courtroom or an arbitrator conducting binding arbitration, the mediator has no power to impose a solution. No formal rules of evidence or procedure control mediation; the mediator and the parties usually agree on their own informal ways to proceed.
Mediation, a form of alternative dispute resolution (ADR), also refers to appropriate dispute resolution and aims to assist two (or more) disputants in reaching an agreement. Whether an agreement results or not, and whatever the content of that agreement, if any, the parties themselves determine — rather than accepting something imposed by a third party. The disputes may involve states, organisations, communities, individuals, or other representatives with a vested interest in the outcome.
Mediators use appropriate techniques and/or skills to open and/or improve dialogue between disputants, aiming to help the parties reach an agreement (with concrete effects) on the disputed matter. Normally, all parties must view the mediator as impartial.
Disputants may use mediation in a variety of disputes, such as commercial, legal, diplomatic, workplace, community and family matters.
History Of Dispute Mediation
The activity of mediation in itself appeared in very ancient times. Historians presume early cases in Phoenician commerce (but suppose its use in Babylon, too). 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) recognised mediation. The Romans called mediators by a variety of names, including internuncius, medium, intercessor, philantropus, interpolator, conciliator, interlocutor, interpres, and finally mediator.
The Middle Ages regarded mediation differently, sometimes forbidding the practice or restricting its use to centralised authorities. 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 chieftains.
Mediation And Conciliation
Much debate has focused on the distinction between conciliation and mediation, and no universal agreement has emerged.
“Conciliation” sometimes serves as an umbrella term that covers all mediation, facilitative, and advisory dispute-resolution processes. [1] 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 disputes, the conciliator has a duty to provide legal information. This helps any agreement reached to comply with any relevant statutory framework pertaining to the dispute. Therefore, conciliation may include an advisory aspect.
Mediation works purely facilitatively; the practitioner has no advisory role. Instead, a mediator seeks to help parties develop a shared understanding of the conflict and work towards building a practical and lasting resolution.
Several different styles of mediation exist: evaluative, facilitative, and transformative. Evaluative mediation does have somewhat of an advisory role in that its practitioners evaluate the strengths and weaknesses of each side’s argument should they go to court, whereas facilitative mediators and transformative mediators do not do this. Furthermore, their definitions of mediation differ in that evaluative mediation has the main drive and goal of settlement, while transformative mediation, in contrast, looks at conflict as a crisis in communication and seeks to help resolve the conflict, thereby allowing people to feel empowered in themselves and better about each other. The agreement that arises from this type of mediation occurs as a natural outcome of the resolution of conflict.
Both mediation and conciliation serve to identify the disputed issues and generate options that help disputants reach a mutually satisfactory resolution. They both offer relatively flexible processes, and any settlement reached should 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.
Mediation In The Franchising Sector
Franchise-agreements represent ongoing commercial agreements between the contracting parties. The agreements usually have elements of an imbalance of bargaining power and of an imbalance of business experience between the franchisee and franchisor, and the parties also face many external commercial pressures.
The franchising code of conduct functions as a mandatory code under the TPA. All franchise agreements must have a clause that requires dispute resolution. Mediation in this field works because it can identify alternatives for the parties and then the parties can work together to solve the dispute. For this type of mediation, there are more formal procedures, such as whoever wishes to initiate the mediation being required to advise the respondent in writing outlining the nature of the dispute, and they will then have three weeks to agree to a method of resolving the dispute; otherwise, they may go to mediation.
Early Neutral Evaluation And Mediation
The technique of early neutral evaluation (ENE) 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. In the case of mediation, solutions normally emerge from the parties themselves and mediators endeavour to find the most acceptable solution by bridging gaps between the parties.
Parties generally call on senior counsel or a panel with expertise and experience in the subject matter under dispute in order to conduct ENE. One refers to such persons as “evaluators” or as “neutral persons”.
Mediator Education And Training
Suitable education and training for mediators becomes a complex issue, largely due to the breadth of areas that may call on mediation as a means of dispute resolution. Debate ensues on what constitutes adequate training on the principles of mediation as well as what personal attributes an individual needs in order to effectively fulfil a mediator’s role.
The educational requirements for accreditation as a mediator differ between accrediting groups and from country to country. In some cases, legislation mandates these requirements, while in others, professional bodies impose standards that applicants must comply with prior to becoming accredited by them.
In Australia, for example, professionals wanting to practice in the area of family law must have tertiary qualifications in law or social science, undertake 5 days of training in mediation, and engage in at least 10 hours of supervised mediation. Furthermore, they must also undertake 12 hours of mediation-education or training every 12 months.
Tertiary institutions globally offer units in mediation across a number of disciplines, such as law, social science, business, and the humanities. In Australia, not all fields of mediation require academic qualifications, as some deal more with practical skills than theoretical knowledge. To this end, membership- organisations such as LEADR provide training courses to further the adoption and practice of mediation. Internationally, the organisation CEDR takes a similar approach to mediator training.
No legislated national or international standards on the level of education that should apply to all mediation practitioner’s organisations exist. However, organisations such as the National Alternative Dispute Resolution Advisory Council (NADRAC) in Australia continue to 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.
Mediator Codes Of Conduct
The application of a code of conduct to the practice of mediation becomes problematic due, in part, to the diverse number and types of practitioners in the field. A tendency exists for professional societies to develop their own codes of conduct that apply to their own members. Examples of this in Australia include the mediation codes of conduct 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 for use by their members. Other organisations, such as the American Centre for Conflict Resolution Institute ([www.accri.org]), have developed both classroom and distance learning courses that subscribe to its mission of promoting peace through education. The CPR/Georgetown Ethics Commission (www.cpradr.org), the Mediation Forum of the Union International des Avocats, and the European Commission have also promulgated codes of conduct for mediators.
Writers in the field of mediation normally espouse a code of conduct that mirrors the underlying principles of the mediation process. In this respect, some of the most common aspects of a mediators codes of conduct include:
- a commitment to inform participants as to the process of mediation.
- the need to adopt a neutral stance towards all parties to the mediation, revealing any potential conflicts of interest.
- the requirement for a mediator to conduct the mediation in an impartial manner
- Within the bounds of the legal framework under which the mediation is undertaken, any information gained by the mediators should be treated as confidential.
- mediators should be mindful of the psychological and physical wellbeing of all the mediations participants.
- Mediators should not offer legal advice; rather, they should direct participants to appropriate sources for the provision of any advice they might need.
- mediators should seek to maintain their skills by engaging in ongoing training in the mediation process.
- mediators should practice only in those fields in which they have expertise gained by their own experience or training.
Accreditation Of ADR In Australia
Australia has no national accreditation system for ADR. However, following the National Mediation Conference in May 2006, the National Mediation Accreditation Standards system has apparently started to move to its implementation phase.
ADR practitioners recognise that mediators (as distinct from arbitrators or conciliators) need to be recognised as having professional accreditations the most. There are a range of organisations within Australia that do have extensive and comprehensive accreditations for mediators but people who use mediation are unsure as to what level of accreditation is required for the quality of service that they receive. Standards will tend to vary according to the specific mediation and the level of specificity that is desired. Due to the wide range of ADR processes that are conducted, it would be very difficult to have a set of standards that could apply to all ADR processes, but standards should be developed for particular ADR processes
Clients need the assurance that mediators have some form of ongoing assessment and training throughout their careers. Mediators must satisfy different criteria to be eligible for a variety of mediator panels. Also, different mediator organisations have different ideals of what makes a good mediator, which in turn reflects the training and accreditation of that particular organisation. Selection processes for ADR practitioners are based on the needs of the service, but a problem is posed when organisations, such as the court, want to refer a client to mediation and they usually have to rely on their in-house mediators or rely on word of mouth. There are inconsistent standards. A national accreditation system could very well enhance the quality and ethics of mediation and lead mediation to become more accountable. There is a need for a unified accreditation system for mediators across Australia to establish clarity and consistency.
Mediation is a voluntary and confidential process in which a neutral third party, known as a mediator, helps parties in dispute communicate, negotiate, and reach a mutually acceptable agreement.
Unlike litigation, which involves a judge or jury making a binding decision, mediation allows parties to maintain control over the outcome of their dispute. It is often quicker, less formal, and less adversarial than traditional litigation.
Mediation can be used to resolve a wide range of disputes, including family conflicts, workplace disputes, business disputes, landlord-tenant disagreements, and civil disputes.
The parties directly involved in the dispute typically participate in mediation, along with their attorneys, if they have legal representation. The mediator facilitates communication and negotiation between the parties.
The mediator acts as a neutral facilitator, helping parties to identify issues, communicate effectively, explore interests and concerns, generate options, and reach a mutually acceptable agreement. The mediator does not impose a solution but helps the parties find their own resolution.
Mediation itself is not legally binding. However, if parties reach an agreement during mediation, they can choose to formalise the agreement into a legally binding contract or settlement agreement.
Mediation offers several benefits, including cost-effectiveness, confidentiality, flexibility, the preservation of relationships, and the empowerment of parties to control the outcome of their dispute. It can also be faster and less stressful than litigation.
The duration of mediation varies depending on the complexity of the dispute, the number of issues involved, and the willingness of the parties to cooperate and negotiate. Some mediations may be resolved in a single session, while others may require multiple sessions over several weeks or months.
If parties cannot reach an agreement in mediation, they may choose to pursue other dispute resolution options, such as arbitration or litigation. However, even if mediation does not result in a settlement, it can still help parties clarify issues and better understand each other’s perspectives.
Mediators can be found through various sources, including mediation organisations, bar associations, courts, and online directories. It is important to choose a mediator with appropriate training, experience, and expertise in the relevant area of law or dispute resolution.
This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.
This glossary post was last updated: 9th April, 2024.
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