What is mediation? (a year-end rant)

This rant is for those (few remaining) lawyers who discourage their clients from trying mediation with the lame allegation that mediation is too “touchy-feely.” It is hard to believe that, in this day and age, some lawyers still have such a patronizing attitude.

I recently had a client who was represented by one such lawyer. After the intake meeting, the client informed me that she intended to change lawyers. She wanted to try mediation but was being discouraged by her lawyer, who used the said obnoxious characterization.

After the client changed counsel, and after our second mediation session ( the lawyers did not attend but were kept informed of progress ) the client announced: ” This doesn’t feel very touchy-feely at all!” - READ MORE...

What is Mediation
Mediation is generally defined as the intervention in a negotiation or a conflict of an acceptable third party who has limited or no authoritative decision-making power, which assists the involved parties to voluntarily reach a mutually acceptable settlement of the issues in dispute. In addition to addressing substantive issues, mediation may also establish or strengthen relationships of trust and respect between the parties or terminate relationships in a manner that minimises emotional cost and psychological harm.

The Role of the Mediator
A mediator is a third party, generally a person who is not directly involved in the dispute or the substantive issues in question. This is a critical factor in conflict management and resolution, for it is the participation of an outsider that frequently provides parties with new perspectives on the issues dividing them and more effective processes to build problem-solving relationships.

Accepting Mediation
The disputants must be willing to allow a third party to enter the dispute and assist them in reaching a solution. Acceptability does not necessarily mean that disputants eagerly welcome the involvement of the mediator and are willing to do exactly as he or she says. It does mean that the participants approve of the mediator’s presence and are willing to listen to and seriously consider his or her suggestions on how to manage or resolve their differences.

Mediation as Intervention
Intervention means to enter into an ongoing system of relationships, to come between or among persons, groups, or objects for the purpose of helping them. It is important to realise that the system exists independently of the mediator. The assumption behind an outsider’s intervention is that a third party will be able to alter the power and social dynamics of an existing conflict relationship by influencing the beliefs or behaviours of individual parties, by providing knowledge or information, or by introducing a more effective negotiation process and thereby helping the participants to settle contested issues.

Mediation as Dialogue
For mediation to occur, the participants must begin talking or negotiating. Labour and management must be willing to hold bargaining sessions, business associates must agree to conduct discussions, governments and public interest groups must be willing to come together to talk. Mediation is essentially dialogue or negotiation with the involvement of a third party. Mediation is an extension of the negotiation process in that it involves extending the bargaining into a new format and using a mediator who contributes new variables and dynamics to the interaction of the disputants. Without negotiation there can be no mediation.

Mediation Diagnosing Conflict
Conflicts involve struggles between two or more people over values, competition for status, power, or scarce resources. Mediators enter conflicts that have reached various levels of development and intensity – latent, emerging or manifest. These levels differ according to their degree of organisation, the activities of the parties and the intensity of expression of concerns and emotions.

Latent conflicts are characterised by underlying tensions that have not yet fully developed and have not escalated into a highly polarised conflict. Often, one or more parties, usually the stronger one, may not even be aware that a conflict or the potential for one exists. Examples of latent conflicts are changes in personal relationships in which one party is not aware of the seriousness of the breach that has occurred; projected but unannounced staff cutbacks within an organisation; developed but unimplemented plans for the sighting of a predictably controversial facility such as a mine or waste disposal site; or potentially unpopular changes in public policy.

Mediators working on latent disputes help participants identify the people who will be affected by a change or who may be concerned about a problem arising in future. They assist in developing a mutual education process around the issues and interests involved and they work with participants on designing and sometimes implementing a problem-solving process.

Emerging conflicts are disputes in which the parties are identified, the dispute is acknowledged and many issues are clear. However a workable cooperative negotiation or problem-solving process has not yet developed. Emerging conflicts have a potential for escalation if a resolution procedure is not implemented. Many disputes between co-workers, business and governments illustrate this type of conflict. Both parties recognise that there is a dispute and there may have been a harsh verbal exchange, but neither knows how to handle the problem. In this case the mediator helps establish the negotiation process and assists the parties to begin to communicate and bargain.

Manifest conflicts are those which parties are engaged in an active and ongoing dispute. They may have participated in violent or nonviolent activities or may have started to negotiate and have reached an impasse. Mediator involvement in manifest conflicts often involves changing the conflict resolution or negotiation procedures or intervening to break a specific deadlock. International mediators intervene in wars. Labour mediators who intervene in negotiations before a strike deadline are working to resolve manifest conflicts, as are commercial mediators who handle a specific insurance claim over a personal injury. Child care and divorce mediators also usually intervene in fully manifest disputes – a couple’s initiation of separation proceedings.

Difference Between a Mediator and a Judge
A mediator generally has limited or no authoritative decision-making power; he or she cannot unilaterally mandate or force parties to resolve their differences and enforce the decision. This characteristic distinguishes the mediator from the judge or arbitrator, who is generally empowered to make a decision for the parties on the basis of a prior agreement by the disputants or societal norms, rules, regulations, laws or contracts. The goal of the judicial or quasi-judicial process is not reconciliation or agreement between the parties, but a unilateral decision by the third party concerning which of the parties is right.

The judge examines the past and evaluates agreements that the parties have entered into, violations which one has inflicted on the other and the norms concerning acquisition of rights, responsibilities, etc. which are connected with these events. When he has taken his standpoint on this basis, his task is finished.

The mediator on the other hand works to reconcile the competing interests of the two parties. The mediator’s tasks are to assist the parties in examining their interests and needs, to help them negotiate an exchange of promises and to redefine their relationship in a way that will be mutually satisfactory and will meet their standards of fairness.

The mediator does not have decision-making authority and this fact makes mediation attractive to many parties in dispute because they can retain the ultimate control of the outcome. However mediators are not without influence. The mediator’s authority, such as it is, resides in his or her personal credibility and trustworthiness, expertise in enhancing the negotiation process, experience in handling similar issues, ability to bring the parties together on the basis of their own interests, past performance or reputation as a resource person and (in some cultures) his or her relationship with the parties. Authority, or recognition of the right to influence the outcome of a dispute, is granted by the parties themselves rather than by an external law, contract or agency.

Some of the Functions of a Mediator
So far we have examined some of the characteristics of a mediator. We will now explore some of the functions a mediator performs. Our definition states that a mediator assists disputing parties. Assistance can refer to very general or highly specific activities. Here follows some of the more general roles of the mediator may assume in assisting parties in resolving disputes:

  • The opener of communication channels, who initiates communication or facilitates better communication if the parties are already talking.
  • To test the legitimacy of the parties and help all parties recognise the right of others to be involved in negotiations.
  • The process facilitator, who provides a procedure and often formally chairs the negotiation sessions.
  • The trainer, who educates the novice, unskilled or unprepared negotiators in the bargaining process.
  • The resource expander, who offers procedural assistance to the parties and links them to outside experts and resources that may enable them to enlarge acceptable settlement options.
  • The problem explorer, who enables people in dispute to examine a problem from a variety of view points, assist in defining basic issues and interests, and looks for mutually acceptable options.
  • The agent of reality, who helps build a reasonable and realistic settlement and questions and challenges parties who have extreme and unrealistic goals.
  • The scapegoat, who may take some of the responsibility or blame for an unpopular decision that the parties are nevertheless willing to accept. This enables them to maintain their integrity and, when appropriate, gain the support of their constituents.
  • The leader, who takes the initiative to move the negotiations forward by procedural – or on occasion, substantive suggestions.

Mediation as a Voluntary Process
The last component of the definition describes mediation as a voluntary process to reach a mutually acceptable settlement of issues in dispute. Voluntary generally refers to both freely chosen participation and freely made agreements. Parties are not forced to mediate and settle by either an internal or external party to a dispute. There is no legal liability to any party refusing to participate in a mediation process. Since a mediator has no authority unilaterally to impose a decision on the parties, he cannot threaten the recalcitrant party with a judgement.

Voluntary participation does not however mean that there may not be pressure to try mediation. Other disputants or external figures, such as friends, colleagues at work, constituents, authoritative leaders, or judges, may put significant pressure on a party to make an attempt at negotiation with the assistance of a mediator. Some courts in family and civil cases rule that parties must make a good faith effort in mediation before the court will be willing to hear the case. Attempting mediation does not mean the participants are forced to reach agreements but the process strives to bring about transformation where there is conflict.


Adapted from:
Moore, Christopher W., 2003. The mediation process: practical strategies for resolving conflict. 3rd edition: PB Printing