Mediation, a Process in Which

Mediation, a process in which a third-party neutral, called the mediator, acts as a facilitator to assist in resolving a dispute between two or more parties, is now widely recognized as an effective dispute resolution process that can be used in a variety of situations ranging from long-standing international disputes, a morale-affecting workplace conflict to a common marital dispute between married couples. It is a nonbinding, non-adversarial dispute resolution technique in which the disputing parties voluntarily attempt to reach a mutually agreeable resolution of their dispute. Although the parties may communicate directly during the mediation process, the role of the mediator is to facilitate communication between the parties, assist them in focusing on the real issues of the dispute, generate options for settlement, explain the consequences of not settling, and encourage each party to accommodate the interest of the other. It is not a new concept by any means and historians have traced its use to the Babylonian times. It is also believed to have been known to the Ancient Greeks and Romans but has gained greater acceptance as an alternative to costly litigation only recently since the 1980s.

This research paper discusses the types of mediation, the situations in which mediation is a suitable option, and outlines its advantages and disadvantages.

Types of Mediation

There are different types of mediation styles, although the core concepts of the mediation process, particularly the neutrality of the mediator and the confidentiality of the process remain the same in all of these types:

Facilitative Mediation

Facilitative mediation is based on the theory that, with assistance from a neutral facilitator, people can work through and resolve their own conflicts. In this type of mediation, the mediator takes an active role in controlling the process by setting the ground rules for solving the problem. He (or she) seeks information from the parties involved in the dispute that help to identify the interests of the parties and the real issues in the disagreement. In addition, the mediator helps the parties explore solutions that benefit both parties. However, in facilitative mediation, the mediator does not offer an opinion on the strengths and weaknesses of the parties' cases nor does he put forward specific solutions.

Transformative Mediation:

The concept of 'Transformative Mediation' was first outlined by Robert A. Baruch Bush and Joseph Folger in their 1994 book, "The Promise of Mediation." This type of mediation purports to realize the full potential of the mediation process by not only finding solutions to people's immediate problems but to change people themselves for the better in the very midst of conflict. To a 'transformative' mediator, achieving this kind of long-term change in an individual is even more important than solving a short-term problem between parties. (Sprangler) Transformative mediators try to change the nature of the parties' conflict interaction through "empowerment" and mutual "recognition."

Empowerment, according to Bush and Folger, is the ability of the individuals to define their own issues such as their goals, resources available, range of options, and preferences, and to seek solutions on their own. The mediator's role in empowerment consists of looking for opportunities to increase the parties' clarity about these issues, and to let the parties take the process where they want it to go. Recognition, on the other hand, is the acknowledgment of and empathy for the situation and problems of others. It helps to expand the parties' ability and willingness to relate to others in a more understanding and considerate way.

The measure of success in transformative mediation is not just a mutually agreeable settlement; any increase in the parties' empowerment and/or recognition of the other is considered to be a success.

Evaluative Mediation

In Evaluative Mediation, a mediator takes a much more active role in bringing the dispute to some form of resolution. He not only facilitates the resolution of a dispute, but also evaluates the case by pointing out the strengths and weaknesses in each party's case, besides making recommendations for a settlement and assessing the likely legal outcome of the dispute. In this type of mediation, the mediator is expected to express an opinion on the merits of the case and define the scope of the settlement. Evaluative mediators are therefore more concerned with the legal rights of the parties rather than just their needs or interests. Unlike, transformative mediation, the focus of evaluative mediation is primarily upon settlement, and evaluative mediators make their best efforts to get the parties to compromise, if necessary, to achieve a result. ("Types of Mediation")

Mediation / Arbitration

Mediation can sometimes be more effective when combined with arbitration, in a hybrid process called "mediation / arbitration.' In this type of mediation, if parties are unable to reach resolution through mediation, the mediator becomes an arbitrator or more often, the case is taken over by an arbitrator, whose decision is binding on both parties. In this type of mediation, the parties are assured of a final resolution of the dispute without litigation. (Ibid.)

Online Mediation

Online Mediation (also called Online Dispute Resolution) is a natural extension of the traditional forms of mediation techniques, facilitated by the advancement of the Internet technology. While, face-to-face mediation is usually preferable because of the difficulty of communicating without non-verbal cues, online mediation is sometimes the only viable option available when the disputants and/or the mediator are located in geographically different locations. Online mediation also has the advantage that it can be carried out outside the traditional business hours, and the concerned parties can participate from their own office or homes. Of course, any of the previously described styles of mediation may be applied to online mediation.

Areas in which Mediation can be Applied

The mediation process can be applied to resolve almost any type of dispute of a collective or individual nature. The process of mediation has for long been recognized in international law and is used for resolving political, economic, or trade related disputes among different countries. The Charter of the United Nations, for example, requires all members to submit disputes to mediation on recommendation of the Security Council. Even before the establishment of the UN, there had been a number of notable mediation efforts internationally. The United States served as mediator between Bolivia and Chile (1882) and the U.S. President Theodore Roosevelt successfully mediated in the Russo-Japanese War in 1905 by brokering a peace agreement between the two countries. The World Trade Organization (WTO) also has important powers to mediate in trade disputes between its member countries.

Another area in which mediation is often employed to settle disputes is the 'workplace.' Disputes between labor and management, discrimination, harassment, and incidents of low-level conflicts among employees can be settled through mediation in a much more satisfactory manner rather than through litigation.

Family disputes such as divorce cases, separation, estate disputes, or disputes between siblings are most satisfactorily solved by mediation. Other areas in which mediation is often used include public disputes relating to environment, landlord-tenant conflicts, medical malpractice, contractual disputes, and victim-offender mediation.

Advantages of Mediation

If a dispute cannot be settled through reasonable discussion and negotiation, the next best alternative is mediation as it has a number of significant advantages over other dispute resolution mechanisms. Some of these are discussed below:

Keeps Relationships Intact

Mediation is particularly valuable when it is desirable to maintain a relationship with people one has a dispute with. For example, a dispute may involve family members, co-workers, business partners, landlord-tenants, or neighbors -- all of whom one has to live with, despite differences. Lawsuits are almost certain to polarize and ultimately ruin relationships; on the other hand, mediation is such an open and non-adversarial process that it has a unique ability to get a dispute resolved without destroying a relationship. ("Why Consider Mediation?")

Provides Psychological Release

Mediation is such a process that it encourages the parties involved in a dispute to explain their respective positions to a mediator in private without holding anything back. This venting of pent-up feelings helps in releasing the debilitating hostility between the adversaries, which removes an important psychological barrier that is often holding back resolution of a conflict. (Bates and Edwards)

Feeling of Control

It is often important for adversaries involved in a dispute to retain control of the resolution process. In most of the dispute resolution processes, part from mediation, the control shifts to the judge, jury, or the arbitrator. In mediation, the mediator acts only as a facilitator, rather than a decision-maker; hence the parties remain in control about the final decision making with regard to the terms of the settlement. The feeling of remaining in full control of the resolution process is an important consideration for most people. ("Why Consider Mediation?")

Confidentiality

Confidentiality is another advantage of mediation. Whatever is said during mediation cannot be legally revealed outside the mediation proceedings or used later in a court of law as evidence. This is in stark contrast to court proceedings, where everything said or submitted in connection with a lawsuit becomes public knowledge, except in very special circumstances through a special order of a judge. Hence, those people who are particularly concerned about privacy are far more comfortable with mediation as compared to litigation or arbitration for dispute resolution. Confidentiality is particularly important in settlement proceedings as people are often reluctant to reveal their "bottom line" to the opposing party; in mediation, they may reveal their bottom lines to the mediator in confidence who can use the information to settle the dispute.

Cost Reduction

Mediation is, almost always, far less expensive than other dispute resolution methods, particularly litigation. Private dispute resolution companies take up mediation cases for a fraction of the cost of bringing a lawsuit. A number of nonprofit community mediation centers in the U.S. even handle relatively minor consumer, neighborhood, workplace, and similar disputes for free or for a nominal charge. (Ibid.) The much shorter duration of most mediation proceedings (one day or less on the average) further helps in cost reduction.

Flexibility & Informality

Other important characteristic of the mediation process are its informality and flexibility. In mediation, formal rules of procedure are almost non-existent, and the process itself is highly flexible. This feature of mediation allows the parties and the mediator to control and design the process themselves. Mediation's informality also allows flexible and creative solutions for settling disputes that may not be possible in a court case where strict procedures and laws have to be followed. Moreover, the mediation process minimizes the importance of lawyers, who are sometimes so focused on winning a case that they forego an opportunity for a quick settlement. Since the parties are themselves in control of the mediation process rather than their lawyers, settlements become more likely.