Mediation Tool Print E-mail

Author: Mary Jacksteit, Public Conversations Project, for CIVICUS Participatory Governance Program July 2011

Mediation is a structured discussion between two or more parties (individuals, organizations) involved in a dispute, about what has led to the conflict, the issues presented, and how the dispute and/or its underlying dynamics might be resolved or changed for the better.   A mediated discussion is assisted by an impartial person or persons (a mediator or co-mediators) whose role is to help the parties address their conflict themselves.  Parties speak on their own behalf, not through attorneys, and exchange information, perspectives and ideas.  Mediation is unlike an adversarial process where the parties focus on persuasion and the decision-maker is a judge or arbitrator.  In mediation the decision-makers are the disputing parties, the mediator having no power to impose a decision.  Any resolution reached is a product of the parties and represents their agreement. Generally speaking, participation in mediation is voluntary and the proceeding is confidential. 

NOTE:  Mediation is being practiced by thousands of practitioners around the world on a broad range of disputes.   Within the field there are different models and variations in practice.  The legal framework/context for mediation also varies. The goal here is to provide a general description of mediation and its core attributes and principles based on practice and resources in the United States.  Given the breadth of the topic, this tool can be no more than an introduction. These two websites alone have dozens of helpful articles on the mediation process.  http://www.mediate.com/about/ and http://crinfo.org/

ADDITIONAL NOTE:  This mediation tool is not intended to cover inter-state mediations by the United Nations or by diplomats, which have important distinctions discussed in Honeyman, Christopher and Nita Yawanarajah,  "Mediation," Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Research Consortium, University of Colorado, Boulder. Posted: September 2003 <http://www.beyondintractability.org/essay/mediation/>.See also these resources from the United States Institute of Peace [1200 17th Street N.W. - Washington, D.C. 20036, Tel: +1.202.457.1700    Fax: +1.202.429.6063.]

Amy Smith and David Smock Managing a Mediation Process (65 pp, downloadable) 2008  USIP http://www.usip.org/resources/core-conflict-management-resources

Resources for Mediation and Managing Peace Processes (several books about addressing complex inter-state and intra-state conflicts)
http://www.usip.org/resources/mediation-and-managing-peace-processes

Download the complete Tool as a PDF file or access the sections below.

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What is it?

What is it?

Basic attributes of mediation are:

  • A structure/format for the exchange of perceptions, information and ideas between disputing parties.
  • Assistance by an individual (the mediator) who is not involved in the conflict and maintains an impartial stance on the substance of the dispute while encouraging and supporting the parties to engage in a constructive exchange.
  • Parties speaking for themselves. Attorneys may be present in some mediations but parties are expected to speak directly and not through their lawyers.
  • Encouragement and support of the parties to work together to clarify the issues and explore options for resolution of the dispute.
  • Ground rules or guidelines about what kind of behaviour, speech and intentions are consistent with mediation.
  • Informed decision-making by the parties. The parties have the opportunity to ask questions, and to seek legal or other expert advice or information if needed.
  • Control by the parties. Generally the decision to undertake and participate in mediation is voluntary though in some instances, and increasingly, parties are ordered to mediation if their dispute is before a court. In all instances, the parties control the course of the mediation and its outcome. Any resolution reached is the product of the parties and must have their agreement. The mediator cannot order the parties to do anything.
  • Confidentiality. Typically the parties agree to keep mediation discussions confidential and the mediator is also bound to confidentiality.

Goals of mediation. These can vary depending on the type of mediation (see below), and the intention of the parties. It is fair to say that every mediation aims for the parties to achieve:

  • Greater comprehension of the needs, concerns and interests presented by the dispute.
  • Expanded awareness of their potential to direct a positive course for their conflict.

Most of the time the desired outcome of mediation is an agreement that fully resolves the dispute though sometimes it is more realistic to work for a partial resolution or narrowing of the issues that will be resolved in another forum. In other instances, particularly in what is called transformative mediation (discussed further below,) the primary goal is to shift the relations and interactions of the parties, with resolution less of a focus.

Mediation is useful when:

  • Communication between disputing parties has broken down or is unproductive because of:
    • Strong emotions
    • A long pattern of negativity
    • Stereotypes and misperceptions
    • The inability of one or more parties to express themselves effectively to, or be heard by, the other/s
  • For other reasons, the parties are unable to negotiate between themselves
  • No other forum or opportunity for constructive conversation exists.
  • The parties want confidentiality to protect reputations, relationships, trade secrets, etc.
  • Alternatives for resolving the dispute (court, arbitration, self-help), are too costly in terms of time, money, distraction, and/or emotional/psychological stress, or too risky such as when the result is very uncertain, or harm is likely from an unresolved or poorly resolved conflict.
  • The parties want to avoid an outcome where there is a “winner” and “loser.”
  • The parties want more than what the judicial system or other arbiter can provide in the context of adjudicating rights (typically money or a legal directive.) This might be symbolic actions, apologies, acknowledgment, actions to build confidence or good will, etc. This is an area where the creativity of mediation offers the parties a great deal.

For a longer article on this topic see Paula Young, The “What” of Mediation: When Is Mediation the Right Process Choice? http://www.mediate.com/articles/young18.cfm#24. The American Bar Association website discusses the use of mediation for matters before a court. http://www.abanet.org/publiced/courts/courtsmediation.html

Types of disputes that are mediated: Since conflict is part of the human condition it is fair to say that the types of conflicts mediation can address is of infinite scope. Mediation is being used in new areas all the time. But categories and examples are useful as long as these are read as illustrative, not exhaustive:

  • Commercial/business (example: breach of contract, construction)
  • Family (examples: divorce, child custody, elder care)
  • Non-family interpersonal (examples: business partnerships, neighbourhoods, schools)
  • Health (examples: level of medical care, insurance coverage)
  • Workplace (examples: union- management, worker-supervisor, discrimination)
  • Community (examples: land use, trespass, quality of life)
  • Consumer (examples: property foreclosure, product quality and warranties)
  • Environmental (examples: water quality, forest preservation, biodiversity).

The Association for Conflict Resolution has 15 subgroups organized around different dispute areas.  See http://www.acrnet.org/sections/index.htm As mediation shifts from interpersonal to multi-party, with larger entities and broader issues, it becomes more lengthy and multifaceted, but the core process is essentially the same.

Who can use mediation:
Anyone with a dispute who has the concurrence of the other party/ies can utilize mediation, assuming there is access to mediation services. Mediation can address disputes between two individuals, between members of a group (family, neighbours, co-workers, students), between organizations or businesses, between individuals and businesses/organizations, among parties to complex environmental or commercial disputes, between employees and employers, between unions and management, and so on. Mediation can be done at any time. It is not necessary that a legal action be pending or imminent (though sometimes it is.)  

Who can mediate: Mediators come from all kinds of vocational and personal backgrounds, including law, psychology, diplomacy, business, education, civic activism, human resources etc. Court related programs may require mediators to be attorneys but this is not a general requirement in the field.  Mediation services may be specifically tailored to disputes, e.g, community, businesses, family, school, environmental disputes. For example, the US Institute for Environmental Conflict Resolution is an independent and impartial federal program providing access to mediation for environmental conflicts in the US. http://www.ecr.gov/

What is important is that mediators be trained specifically in mediation. There are thousands of mediation training programs, some for a fee, and some that are free in exchange for providing volunteer mediation services.  Those seeking mediation training should search locally, though there are training companies that work internationally that can be located easily on the internet. Legal associations may be a good avenue for finding mediation training. Mediators may have an individual or group professional practice, be associated with a law firm, work for a government program, or volunteer or be employed by a non-profit organization.  Though there is no licensing requirement in the US, there is a Model Standard of Conduct for Mediators adopted by the American Bar Association, American Arbitration Association and Association for Conflict Resolution, http://www.acrnet.org/pdfs/ModelStandardsofConductforMediatorsfinal05.pdf.

Finding a mediator.  Mediators can be located in business listings (under “mediation” ), on the internet, through attorney referrals and recommendations, and through non-profits and other organizations providing mediator listings. Courts often maintain listings of mediators. Mediator directories can be located online. Examples (there may be similar organizations in other countries:

Some organizations run programs that provide parties with a mediator. The Better Business Bureau does this in the US. Better Business Bureau, http://www.bbb.org/us/Dispute-Resolution-Services/. This is short and helpful advice about finding a mediator: http://www.abanet.org/publiced/courts/mediation_choose.html. Parties seeking the help of a mediator need to assure themselves about competence and professionalism (training, experience, adherence to established standards of practice.)


How is it done?

How is it done?

The mediator provides a conversational structure.The most widely used form of mediation focuses on problem-solving and negotiating a resolution to the dispute.  After introductory remarks that “set the stage” (see below), the mediator leads the parties through a series of steps that vary somewhat across different mediation approaches and have some different labels,  but achieve these basic functions:  

  • Each party providing a description of the problem/dispute.
  • Information gathering through, for example, asking open ended and clarifying questions, sharing facts, identifying and obtaining important missing information.
  • Identification of issues and of the interests of each party with respect to the issues
  • Cooperative problem-solving
    • Generating options to address the issue/s and interests (may use brainstorming)
    • Evaluating/assessing options (developing criteria is part of this step)
  • Negotiation (back and forth communication in pursuit of an agreement)
  • Writing and signing an agreement, if one is reached.  

For a longer but still concise overview of this basic mediation model read: Stepp, Jessica A. How Does the Mediation Process Work?http://www.mediate.com/articles/steppJ.cfm?nl=18

Throughout the process, the mediator is listening for commonality in goals and interests and also noting where the parties have interests that are different, but not actually in conflict.  The mediator may offer these perceptions as potentially fruitful areas to explore. The mediator can also usefully reframe issues and interests presented by the parties (typically diametrically opposed), restating what’s been said without negative adjectives and attributions.  This begins the process of redefining the nature of the dispute so that agreeable resolutions start to emerge. For more discussion of reframing see,  http://www.beyondintractability.org/essay/joint_reframing/

There are variations in mediation practice.  During the problem-solving stage some mediators meet separately with each party (called “caucusing”.) Caucuses provide privacy for expressing fears, brainstorming and testing ideas with the mediator.  The mediator may deliver proposals back and forth for each side to consider.  In other mediations the parties stay together. Some mediators take an active role in creating options (even putting a suggested resolution on the table for the parties to consider) and exerting pressure on the parties to come to agreement (called an evaluative or directive approach.)  Other mediators stay with facilitating the parties’ communication, posing questions to the parties to provoke fresh thinking, keeping decision-making and control firmly in the hands of the parties.  Many mediators use a mix of styles, making judgments about what approaches will best serve the parties involved.   The nature of the dispute and the expectations of the parties may dictate differences in style

Transformative mediation is a distinct model.  There the priority is changing the interaction and relationship between the disputing parties with settlement much less important.  Transformative mediators are careful not to change the parties’ meanings while reframing, or to insert their own ideas about what they think is preferable.  The goal for the mediation process is  empowerment of the parties with more self-confidence and inner strength, and recognition of others’ needs, concerns and interests.   The mediator’s role is to support these two shifts by listening and watching for empowerment and recognition taking place and supporting this, using caucuses and other opportunities to help the parties understand their own choices and consider the other perspectives.  The expected result is transformation the parties’ interaction.  This change may make it possible for the parties to resolve their dispute at the mediation or a later time, but the value of the mediation is not judged by whether that happens, and parties are not pushed to find agreement.

The mediator “sets the stage.”  In all types of mediation, the mediator maintains an impartial stance, not favouring either/any party, and respects the self-determination inherent in mediation.   The mediator provides a conducive environment and structure, providing  privacy and confidentiality, a physical set-up in which all participants are seated so they can talk directly to one another, and ground rules/agreements/guidelines for how people will speak and behave during the mediation (taking turns speaking, listening without interruption are common ground rules.)  The mediator insures that parties understand the mediation process and are participating voluntarily (typically they sign a mediation agreement.)  The mediator also offers encouragement, inviting people to make a sincere effort, to approach the mediation with flexibility and an open mind, to listen, to be realistic and honest.  The mediator may offer the “voice of reality”, pointing to the costs of alternatives, and to the value of this opportunity for the parties to take control of their dispute.


Benefits

Benefits

Most mediation programs ask parties to evaluate the process after its completion.  The latter type of evaluation typically reflects that a large majority of participants view the process as fair, and any resolution reached as fair.  There are numerous published evaluations of mediation in the US and elsewhere.  

The Association for Conflict Resolution/ CR Info provide a means for searching for mediation studies. http://acr.crinfo.org/

The following are commonly cited benefits from mediation though they may not be present in every case:

  • A more timely and less costly road to resolving conflict (across dimensions of cost, as described above.)
  • Improved communication and interactions between the parties (important where a relationship will continue, e.g. divorced parents, contractors and subcontractors on a multi year construction project, co-workers, supervisor and employee, union-management, neighbours.)
  • Preserved or re-built relationship/s.
  • Closure of a relationship (marriage, business partnership, employment relationship) on a more positive note.
  • Greater understanding of others’underlying interests needs and concerns.
  • A mutually satisfactory outcome (not win-lose.)
  • Higher commitment to compliance since the outcome is not imposed, but has been developed and agreed upon by the parties.
  • Greater control over outcome.
  • Growth in personal capacity/power from negotiating for oneself, being listened to, acknowledging others’ needs and interests, and collaborating in a joint effort.
  • Workable and implementable solutions tailored by the parties to their specific needs and situations (avoiding the unanticipated consequences that can flow from imposed outcomes.)
  • The chance for the parties to address needs in a way that a court could not order such as apologies, demonstrations of good will, recognitions, etc.


Challenges and Lessons

Challenges and Lessons

  • Voluntariness is both a virtue and a challenge.  Mediation is not possible if essential parties refuse to participate or cannot be brought into the process for other reasons.   Even where parties are ordered by a court to mediate, once in the process, a party has control over his participation.  Where there is one willing and one resistant party, it can help to have the mediator or mediation intake representative speak separately with the resistant party to provide information and answer questions about what the mediation will be like.
  • There are situations when an overarching value is to establish a binding legal precedent or legal right.  Mediation cannot provide that outcome, but might be useful for narrowing and focusing issues for a subsequent legal proceeding.
  • Mediation may not be appropriate in some situations because there is insufficient parity between the parties, or psychological and power dynamics that disadvantage one side to an extent that cannot be remedied.There are debates within the field about whether or not some situations categorically should not be mediated, such as where there has been victimization of one party by another (e.g. domestic violence) or there is a great imbalance of power.   Where there is a power imbalance the mediator may be able to mitigate its impact if the powerful party can be made to understand why it is in its interest to take seriously the other party’s needs and interests, and come to terms with them fairly.  Within the process the mediator has some options to protect a much weaker party:  separating the parties and acting as messenger between them; enforcing ground rules that inhibit dominating behaviour; allowing sufficient opportunity for the weaker party to obtain legal and other expert advice.The bottom line is that the mediator has an ethical responsibility not to proceed or continue with mediation if he/she believes that safety (physical or psychological) cannot be maintained and/or believes that one party is taking advantage of another. 
  • Cultural differences between the parties, or between the parties and the mediator/ mediation model (e.g., language, assumptions) can be a challenge.  A mediator may be able to work with the parties to develop more compatible language/terms and a modified process to be more culturally appropriate.   Resources for cross-cultural mediation should be sought.  An informative article by a US educated Indian attorney is Cultural Challenges in Cross Border Mediation,http://www.llrx.com/features/crossbordermediation.htm.
  • Parties – especially those ordered to mediation - may begin with an assumption that mediation cannot succeed because their positions are so far apart, the other lacks good faith, etc.  The mediator’s job is to gain the parties’ trust and confidence in his/her ability to help them make a shift.  From the first introductory remarks, the mediator should convey energy, experience, and confidence in the parties’ ability to take control of their dispute.   Conflict often makes people feel powerless.  


 

Key Resources

Key Resources

There are hundreds of books on mediation.   One good list is at the mediate.com website:  http://www.mediate.com/articles/brownB1.cfm

These are a few very basic, useful books.

  • Christopher W. Moore, The Mediation Process: Practical Strategies for Resolving Conflict  Jossey-Bass 3rded 2003 (the basic problem-solving mediation model)
  • Robert Baruch Bush and Joseph Folger, The Promise of Mediation:  Responding to Conflict Through Empowerment and Recognition, Jossey-Bass 1994  (principles of transformative mediation)
  • Sam Kagel and Kathy Kelly, The Anatomy of Mediation: What Makes it Work, BNA 1989 (A step by step description of a union-management mediation as it is taking place. The mediator uses a more directive, evaluative method, common in this type of dispute.) 
  • Roger Fisher and William Ury, Getting to Yes: Negotiating Agreement Without Giving In, 2d ed., Penguin Books 1991 (interest-based negotiation which is at the heart of traditional mediation)

There are excellent resources on the internet.


A small sampling of articles/mediation work outside the US:


Philippines:  Philippine Mediation Center,http://www.pmc.org.ph/



Case Studies

Case Studies

The references above will provide many examples of mediated cases.

 

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