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Mediation by a Mediator, a form of alternative dispute resolution (ADR) or "appropriate dispute resolution", aims to assist two (or more) disputants in reaching an agreement. Whether an agreement results or not, and the content of that agreement (if any) the parties themselves determine — rather than accepting something imposed by a third party. The disputes may involve (as parties) states, organizations, 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 mediation and the mediator
The activity of mediation by a mediator 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) recognized 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 by a mediator differently, sometimes forbidding the practice or restricting its use to centralized 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 tribal chief.
Mediation by a Mediator and conciliation
"Conciliation" sometimes serves as an umbrella-term that covers all mediation and facilitative and advisory dispute-resolution processes. Neither process determines an outcome, and both share many similarities. For example, both processes involve a neutral third-party, called a mediator 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 any agreement reached to comply with any relevant statutory framework pertaining to the dispute. Therefore conciliation may include an advisory aspect.
Mediation by a mediator works purely facilitatively: the practitioner 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.
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 by the mediator.
Both mediation by a mediator and conciliation serve to identify the disputed issues and to 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 by a mediator in the construction law sector
Construction Law 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 construction law code of conduct functions as a mandatory code under the TPA. All construction law agreements must have a clause that requires dispute resolution. Mediation by a mediator in this field works because it can identify alternatives for the parties and then the parties can work together to solve the dispute. This type of mediation has formal procedures: for example: whoever wishes to initiate the mediation must 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 by a mediator
The technique of early neutral evaluation (ENE) provides early focus in complex commercial disputes within contruction law, 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.
Mediator education and training
Suitable education and training for mediators becomes a complex issue — largely due to the breadth of areas which 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 and applicants must comply prior to becoming accredited by them.
In Australia, for example, professionals wanting to practise 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 at least 10 hours as a supervised mediator. Furthermore, they must also undertake 12 hours of mediator - 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. In Australia not all fields of mediation-work require academic qualifications, as some deal more with practical skills rather than with theoretical knowledge: to this end membership-organizations provide training-courses to further the adoption and practice of mediation. Internationally the organisation CEDR takes a similar approach to the training of mediators.
No legislated national or international standards on the level of education which should apply to all mediation practitioner’s organizations 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 by a mediator becomes problematic — due in part to the diverse number and type of practitioners in the field. A tendency exists for professional societies to develop their own codes of conduct, which 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 organizations such as the American Center for Conflict Resolution Institute have developed both classroom and distance learning courses which subscribe to its mission of promoting peace through education. The CPR/Georgetown Ethics Commission, 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 mediator 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 practise only in those fields in which they have expertise gained by their own experience or training.
Australia has no national accreditation system for ADR mediators. 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 recognize that mediators (as distinct from arbitrators or conciliators) need to be recognized as having professional accreditations the most. There are a range of organizations within Australia that do have extensive and comprehensive accreditations for mediators but people that 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 mediator processes that are conducted it would be very difficult to have a set of standards that could apply to all ADR mediator processes, but standards should be developed for particular ADR mediator 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 organizations have different ideals of what makes a good mediator which in turn reflects the training and accreditation of that particular organization. Selection processes for ADR practitioners are based on the needs of the service, but a problem is posed when organizations, 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.
Uses of mediation and the mediator
One core problem in the dispute-resolution process involves the determination of what the parties actually dispute. Through the process of mediation participants can agree to the scope of the dispute or issues requiring resolution. Examples of this use of mediation in the Australian jurisdiction include narrowing the scope of legal pleadings and its use in industrial and environmental disputes.
One of the primary uses of mediation involves parties using the mediation process to define the issues, develop options and achieve a mutually-agreed resolution.
Australia has incorporated mediation extensively into the dispute-settlement process of construction law and into the latest round of reforms concerning industrial relations under the WorkChoices amendments to the Workplace Relations Act.
Where prospects exist of an ongoing disputation between parties brought on by irreconcilable differences (stemming from such things as a clash of religious or cultural beliefs), mediation can serve as a mechanism to foster communication and interaction by the mediator.
Mediation can function not only as a tool for dispute resolution but also as a means of dispute prevention. Mediation can be used to facilitate the process of contract negotiation by the identification of mutual interests and the promotion of effective communication between the two parties. Examples of this use of mediation can be seen in recent enterprise bargaining negotiations within Australia.
Governments can also use mediation by a mediator to inform and to seek input from stakeholders in formulation or fact-seeking aspects of policy-making. Mediation in wider aspect can also serve to prevent conflict or to develop mechanisms to address conflicts as they arise.
The uses of mediation and the mediator in preventing conflicts
Mediation is a very usual tool, adaptable to anticipate problems, grievances and difficulties between parties before the conflict may arise. This has potential applications in large and private sector organisations, particularly where they are subject to excessive change, competition and economic pressure. A key way mediation is used to prevent these conflicts is complaint handling and management. This is a conflict prevention mechanism designed to handle a complaint effectively at first contact and to minimise the possibility of it developing into a dispute. According to Charlton (2000, p.4) a person who undertakes this role is commonly known as a mediator.
One can also employ mediation to reduce or prevent violence in sports and in schools, using peers as mediators is a process known as “peer mediation”. This process (highlighted by Charlton[5] provides a popular way of handling conflicts and of preventing violence in primary schools, high schools and sporting activities. Schools adopting this process often recruit and train students interested in being peer mediators.
Responsibilities regarding confidentiality in mediation
One of the hallmarks of mediation is that the process is strictly confidential. The mediator must inform the parties that communications between them during the intake discussions and the mediation process are to be private and confidential. In general, the information discussed can never be used as evidence in the event that the matter does not settle at mediation and proceeds to a court hearing. Spencer and Altobelli (2005, p. 261) point out it is considered common for parties entering into mediation to sign a mediation agreement document with the mediator. The parties therefore agree that it’s a condition of being present or participating in the mediation and the document if necessary may be deemed confidential by virtue of construction law.
Parties who enter into mediation do not forfeit any legal rights or remedies. If the mediation process does not result in settlement, each side can continue to enforce their rights through appropriate court or tribunal procedures. However, if a settlement has been reached through mediation, legal rights and obligations are affected in differing degrees. In some situations, the parties may only wish to have a memorandum or a moral force agreement put in place; these are often found in community mediations. In other instances, a more comprehensive deed of agreement is drafted and this deed serves to bring a legally binding situation. Charlton and Dewdney (2004, p. 126.) point out that a mediated agreement may be registered with the court to make it legally binding and it is advisable to have a lawyer prepare the form or, at the very least, to obtain independent legal advice about the proposed terms of the agreement.
Mediation by a mediator has opened the door for parties in conflict to resolve their differences through non-traditional judicial forums. Over the last few decades, mediation has brought to light the processes, or alternatives to litigation, that enable parties to resolve their differences without the high cost associated with litigation. An interesting remark made by Spencer and Altobelli (2005, p. 223): "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."
Common aspects of mediation by a mediator
Mediation as a process involves a third party (often an impartial mediator) assisting two or more persons, ("parties" or "stakeholders") to find mutually-agreeable solutions to difficult problems.
People make use of mediation at many different levels and in multiple contexts: from minor disputes to global peace-talks. This makes it difficult to provide a general description without referring to practices in specific jurisdictions — where "mediation" may in fact have a formal definition and in some venues may require specific licenses. This article attempts only a broad introduction, referring to more specific processes (such as peace process, binding arbitration, or mindful mediation) directly in the text.
While some people loosely use the term "mediation" to mean any instance in which a mediator helps people find agreement, professional mediators generally believe it essential that mediators have thorough training, competency, and continuing education. The term "mediation" also sometimes occurs incorrectly referring to arbitration; a mediator does not impose a solution on the parties, whereas an arbitrator does.
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.
In the United States, mediator codes-of-conduct emphasize "client-directed" solutions rather than those imposed by a mediator in any way. This has become a common, definitive feature of mediation in the US and in the UK.
Due to the particular character of this activity, each mediator uses a method of his or her own (the law does not ordinarily govern a mediator's methods), that might eventually differ markedly from the above scheme. Also, many matters do not legally require a particular form for the final agreement, while others expressly require a precisely determined form.
Mediation in business and construction law
The eldest branch of mediation applies to business and construction law, and still this one is the widest field of application, with reference to the number of mediators in these activities and to the economical range of total exchanged values.
The mediator in business or construction law helps the parties to achieve the final goal of respectively buying/selling (a generic contraposition that includes all the possible varieties of the exchange of goods or rights) something at satisfactory conditions (typically in the aim of producing a bilateral contract), harmonically bringing the separate elements of the treaty to a respectively balanced equilibrium. The mediator, in ordinary practice, usually cares of finding a positive agreement between (or among) the parties looking at the main pact as well as at the accessory pacts too, thus finding a composition of all the related aspects that might combine. in the best possible way, all the desiderata of his clients.
Subfields of commercial mediation include work in well-known specialized branches: in finance, in insurance, in ship-brokering, in real estate and in some other individual markets, mediators have specialized designations and usually obey special laws. Generally, mediators cannot practice commerce in the genre of goods in which they work as specialized mediators.
Mediation and litigation by the mediator
Mediation offers a process by which two parties work towards an agreement with the aid of a neutral third party or mediator. Litigation, however, is a process in which the courts impose binding decisions on the disputing parties in a determinative process operating at the level of legal rights and obligations [Boulle 2005]. These two processes sound completely different, but both are a form of dispute resolution. Litigation is conventionally used and conventionally accepted, but Mediation is slowly becoming more recognized as a successful tool in dispute resolution. Slowly these processes are becoming inter-dependent, as the Courts in some cases are now referring parties to Mediation. In saying this, there are distinct differences between the two processes. Mediation claims to resolve many of the problems associated with litigation, such as the high costs involved, the formality of the court system and the complexity of the court process. Mediation does not create binding agreements unless the parties consent to it, and the Mediator has no say in the outcome. Even though our court system and mediation have increasing connections, they still reflect different value assumptions and structural approaches towards dispute resolution.
Competence of the mediator
Numerous schools of thought exist on identifying the "competence" of a mediator. Where parties retain mediators to provide an evaluation of the relative strengths and weaknesses of the parties' positions, subject-matter expertise of the issues in dispute becomes a primary aspect in determining competence.
Some would argue, however, that an individual who gives an opinion about the merits or value of a case does not practise "true" mediation, and that to do so fatally compromises the alleged mediator's neutrality.
Where parties expect mediators to be process experts only (i.e., employed to use their skills to work through the mediation process without offering evaluations as to the parties' claims) competence is usually demonstrated by the ability to remain neutral and to move parties though various impasse-points in a dispute. International professional organizations continue to debate what competency means.
At times disputants have the ability to select the mediator: they should exercise due diligence. Anyone can act as a mediator, with no licensing required. Some mediator organizations require mediators to qualify. Mediators listed in court-connected rosters have to meet certain experiential and training requirements. Many mediators have a wide range of skills. Matching the mediator with the dispute and the needs of the disputant comprises a pre-mediation task. For example, the mediator will need to have skill in managing the many parties involved in a land-use dispute. Expertise in construction law may prove important in divorce mediation, while knowledge of construction matters will add value in construction disputes.
Mediators have a wide variety of practices in matters of contact with the disputants or their lawyers prior to the mediation meeting. Some mediators hold separate, in-person preliminary meetings with each disputant. These have many names, including "preliminary conferences". Disputants who meet with the mediator before the mediation learn about the process of mediation, their own role, and what the mediator will do. Having met the mediator before the mediation, disputants can put to rest any concerns about whether they can trust the mediator's neutrality and impartiality; and they can focus on how to resolve the dispute.
Mediation as a method of dispute resolution
In the field of resolving legal controversies, mediation offers an informal method of dispute resolution, in which a neutral third party, the mediator, attempts to assist the parties in finding resolution to their problem through the mediation process. Although mediation has no legal standing per se, the parties can (usually with assistance from legal counsel) commit agreed points to writing and sign this document, thus producing a legally binding contract in some jurisdiction specified therein.
Mediation differs from most other conflict resolution processes by virtue of its simplicity, and in the clarity of its rules. It is employed at all scales from petty civil disputes to global peace talks. It is thus difficult to characterize it independently of these scales or specific jurisdictions - where 'Mediation' may in fact be formally defined and may in fact require specific licenses. There are more specific processes (such as peace process or binding arbitration or mindful mediation) referred to directly in the text.
Mediator roles and functions
Mediator functions are classified into a few general categories, each of which necessitates a range of specific interventions and techniques in carrying out a general function.
Mediators can contribute to the settlement of disputes by creating favorable conditions for dealing with them. This can occur through:
- Providing an appropriate physical environment- this is through selection of neutral venues, appropriate seating arrangements, visual aids and security.
- Providing a procedural framework- this is through conduct of the various stages of mediation process. As the chair of the proceedings, they can establish basic ground rules, provide order, sequence and continuity. The mediators opening statement provides an opportunity to establish a structural framework, including the mediation guidelines on which the process will be based.
- Improving the emotional environment- this is a more subtle function and varies among mediations and mediators. They can improve the emotional environment through restricting pressure, aggression and intimidation in the conference room by providing a sense of neutrality and by reducing anxiety among parties.
The choice of mediation as a dispute resolution option links closely to the identity of a mediator who conducts it. This follows from the circumstances: different models of mediation exist, mediators have a lot of discretion in a flexible procedure, and the mediator's professional background and personal style have enormous potential impacts on the nature of the service provided. These factors make the selection of mediators of real practical significance.
The term "choice of mediator" implies a process of deliberation and decision-making. No formal mechanism for objecting to the appointment of particular mediators exists, but in practice the parties could ask mediators to withdraw for reasons of conflict of interest. In community mediation programs the director generally assigns mediators without party involvement. In New South Wales, for example, when the parties cannot agree on the identity of a mediator the registrar contacts a nominating entity, such as the Bar Association which supplies the name of a qualified and experienced mediator. The following are useful ways of selecting a mediator:
- Personal Attributes - qualities and characteristics which are innate, as opposed to skills and techniques which can be learned and developed. In this concept a number of desirable attributes for mediators include interpersonal skills, patience, empathy, intelligence, optimism and flexibility.
- Mediation qualifications, experience and background - while some jurisdictions prescribe no generalized qualifications for mediators, in some specific contexts mediators require qualifications prescribed by legislation. In New South Wales, for example, the Family Law Act 1975 (Cth) proscribes qualifications for mediators. Qualifications usually revolve around knowledge of the theory and practice of conflict, negotiation and mediation, mediations skills, and attitudes appropriate for mediation. There are three factors of relevance: experience in practice of mediation, experience in the substantive area of dispute, and personal life experience.
- the mediator's training
- the mediator's professional background
- the mediator's certification and its value
- the mediation model offered, and whether it suits the case
- any conflict of interest the mediator may have
- the mediator's willingness to allow, and possibly encourage, mediation participants to seek creative solutions
- the mediator's fee
Mediation has sometimes been utilized to good effect when coupled with arbitration, particularly binding arbitration, in a process called 'mediation / arbitration'. In this process, if parties are unable to reach resolution through mediation, the mediator becomes an arbitrator, shifting the mediation process into an arbitral one, seeking additional evidence as needed (particularly from witnesses, if any, since witnesses are normally not called upon by a mediator), and finally rendering an arbitral decision.
This process is more appropriate in civil matters where rules of evidence or jurisdiction are not in dispute. It resembles, in some respects, criminal plea-bargaining and Confucian judicial procedure, wherein the judge also plays the role of prosecutor - rendering what, in Western European court procedures, would be considered an arbitral (even 'arbitrary') decision.
Mediation / arbitration hybrids can pose significant ethical and process problems for mediators. Many of the options and successes of mediation relate to the mediator's unique role as someone who wields coercive power over neither the parties nor the outcome. If parties in a mediation are aware the mediator might later need to act in the role of judge, the process could be dramatically distorted. Thankfully, mediation - arbitration often involves using different individuals in the role of mediator and (if needed later) arbitrator, but this is not always the case.
Mediator liability
Mediators should take necessary precautions to protect themselves, as they are putting themselves in a vulnerable position in terms of liability. Mediators need to be qualified and properly trained before they can mediate a legally binding mediation. In mediation, there are a number of situations in which liability could arise. For example, a mediator could be liable for misleading parties about the process and/or process of alternative dispute resolution. If a mediator inappropriately recommends mediation as a dispute resolution method, those involved can hold the mediator liable. A breach of confidentiality on the mediators behalf could result in liability. These situations can all lead to court proceedings, although this is quite uncommon.
Mediation in the United States
Note the differences between the legal definition of civil mediation in the United States of America and mediation in other countries. Compared with the situation elsewhere, mediation appears more "professionalized" in the United States, where State laws regarding the use of lawyers as opposed to mediators may differ widely. One can best understand these differences in a more global context of variances between countries.
Within the United States, the laws governing mediation vary greatly on a state-by-state basis. Some states have fairly sophisticated laws concerning mediation, including clear expectations for certification, ethical standards, and protections preserving the confidential nature of mediation by ensuring that mediators need not testify in a case they've worked on. However, even in states that have such developed laws around mediation, that law only relates to mediators working within the court system. Community and commercial mediators practising outside the court system may very well not have these same sorts of legal protections.
Professional mediators often consider the option of liability insurance — traditionally marketed through professional dispute-resolution organizations.
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