Mediation

Mediation exists when a neutral and impartial third party actively assists two or more people to negotiate a constructive resolution to their conflict.
Mediation is a phenomenon that cuts across many cultural and geographic boundaries.

The following are some of the more interesting definitions of mediation.

Mediation is any process for resolving disputes in which another person helps the parties negotiate a settlement. (Jennifer Beer, 1997).
Mediation is effective negotiation applied by a third party neutral in a confidential setting. (Raider & Coleman, 1992).
Mediation is the intervention into a dispute or negotiation by an acceptable, impartial, and neutral third party who has no authoritative decision-making power to assist disputing parties in voluntarily reaching their own mutually acceptable settlement of issues in dispute. (Moore, 1986)
Mediation is a practical process through which the facilitator helps the parties themselves check facts, share feelings, exchange perceptions and ideas, and work toward agreements. (Crawley, 1992)

The definitions provided above offer us some different perceptions of what the process of mediation is all about, but one factor is clear and accepted by all.

Mediation involves a third party who is neutral until otherwise proven not to be neutral.

Other words and terms, used by our panel of experts, help define the role of the mediator: impartial, confidential, acceptable to both parties, and helpful. As for the process itself, it is confidential, practical, intervening, voluntary, mutually fact finding, awareness raising, decision-making, and problem solving.

Mediation often emerges from failed negotiations where the two parties in dispute agree voluntarily to work with a third party intermediary. This person, or persons since mediators often work in teams of two or more, must be acceptable to the quarreling parties, and are expected to be impartial and neutral in their involvement.

These personal qualities are becoming more rigorous and monitored as mediation becomes a profession with the trappings of required training, credentialing, codes of ethics and gate keeping by those who have already made it through the gate.

The Issue of Neutrality

You will note that many of the definitions of mediation include the words “neutrality” or “neutral” as a key value underlying the process. The use of these terms has been commented as a norm in the mediation literature. However, many academics and practitioners are questioning this as a truism of how mediation works, and even as an operational value that should guide the process.

One argument says it is difficult if not impossible for mediators to shed all their life experiences, biases, and personal values when they step into this role. Consequently, it is difficult to remain neutral.

Another emerging school of thought contends that “mediation has turned into a dangerous instrument for increasing the power of the strong to take advantage of the weak”.

The argument goes something like this. Since the mediation process is informal and consensual and absent of procedural and substantive rules, it can magnify power imbalances between conflicted parties. For example, a domineering spouse in a divorce settlement might continue their manipulative and coercive behavior during mediation thus making it difficult for the mediator to remain neutral.

Or, if remaining neutral, the mediator sanctions an unjust settlement in favor of the more aggressive party. Has mediation, as a process trying to assure neutrality, effectively turned the clock back on certain social justice gains such as evil rights, gender equality, and consumer rights?

In some areas of the world, there is growing sentiment among mediators that neutrality is no longer a valid or workable norm. From our perspective, it raises issues of credibility among those parties who might be considering mediation as a dispute resolution alternative. It’s something to ponder as you consider the role of mediation as a conflict management process for your community.

Perspective

Jennifer Beer, of the Friends Conflict Resolution ProgramsOpens in new window, injects a touch of reality in her discussion of mediation.

In one sense, mediation is no big deal. People have been mediating for as long as people have been fighting and most of us pick up mediation skills from our everyday experience. In another sense, mediation as a formal process, has become commonplace only recently outside of labor and international disputes . . . Using mediation for personal, organizational and public conflicts is still a fledgling idea.Jennifer Beer

Mediation can sometimes work spectacularly well. The participants resolve problems, let go their sense of grievance, and mend broken relationships. Occasionally, mediation sessions crash and bum, leaving parties feeling more angry and hopeless than before. Usually, the outcome is less dramatic: people find answers to at least some of their concerns and walk away emotionally relieved, with an agreement that they will, for the most part, uphold.

Success lies partly in the mediator skills, but also with the readiness of the parties. If someone is bent on keeping a conflict going, even the most obvious solutions will not work. If everyone wants to see a conflict end, mediation can be a graceful and efficient way to do so.

Where and When to Mediate

The history of mediation is rich, long and expansive. And, it cuts across all sectors of societal interaction in many cultures and countries. More specifically, some settings where mediation has been and is being used include:

Public interest, multi-party disputes that cut across political and geographical boundaries, i.e., new highway locations, sitting of sanitary landfills, water rights
Workplace disputes at all levels between individual employees, between departments, within management teams and elected boards, and between organizations
Disputes with public agencies over non-compliance of standards and regulations
Labor-management bargaining and grievance procedures
Multinational, regional and ethnic disputes

Victims meeting with offenders; meetings following domestic or street violence
Efforts to understand and resolve acts of civil disobedience
Family disputes, divorce, custody, generational alienation
School peer mediation, parent-teacher conflicts
Consumer disputes
Just about anywhere there is unresolved conflict and those in contention are voluntarily willing to accept the help of a neutral third party with the will and skills to help those in dispute participate in mutual decision making and problem solving.

Conditions that help make mediation an appropriate intervention:

Strong emotions have muddied judgment
The parties know each other
There is no great disparity in the power relationship between parties

Those in conflict live together, work together, or for some other reason can’t put distance between them
One party feels uncomfortable about confronting the other without a third party present
Those involved want to control the outcomes
Maintaining the relationship is important

Those in conflict feel they need the skills and support of a third party to work out their differences
The need for a quick decision
Confidentiality is important
Lots of people are involved, e.g., a neighborhood dispute
The parties want to avoid a formal, costly public procedure, e.g., litigation

Conditions that make mediation an inappropriate intervention:

There are strong indications that one party intends to use the mediation to enflame the conflict or use it to achieve ulterior motives

One party comes across in the preliminary discussions as not able to listen to others, or the party is too disturbed to work toward a collaborative agreement
Something traumatic has just happened that will keep either party or both from useful participation
A power balance exists that makes mutual decision making unlikely

One of the parties, or both, would be better off working through other forums, e.g., the courts
The main issue or dispute seems unresolvable through mediation
Key parties are unwilling to participate in the process
Neither side is ready to consider a settlement of their differences
When there is no mechanism to assure implementation of the agreement

Mediating Roles

Effective mediators wear many hats, perform many roles, including:

Communication Plumber — Opens up communication channels between the parties and keeps them open
Legitimizer — Helps parties recognize the right to be involved
Explorer — Helps those involved uncover 43 ways, more or less, to approach a problem
Reality Checker — Keeps parties from going off into fantasy land in search of solutions
Resource Networker — Finds appropriate resources and links them to other helpers and options
The Skill Builder — Helps parties build good communication and problem solving skills
Drill Sergeant — Takes the initiative, if necessary, to keep the negotiations moving forward
Master Carpenter — Reframes issues
Facilitator — Provides processes for achieving results and improving relationship
Hair Shirt Tailor — Does penance, if necessary, and takes the blame and responsibility for ideas and options that fizzle to shield and nurture the self-confidence of those involved. By the way, a hair shirt is made of rough animal hair and worn next to the skin as a show of repentance.
Delegator — “Sorry, I don’t make decisions for my clients”.
The “Secrets” Agent — Responsible for keeping the procedures confidential.

Carrying out these roles require many personality traits and skills. The effective mediator is:

Empathetic, respected, trusted, gentle, firm, impartial, impassioned, comfortable with emotions, trusting, understanding, self-aware, patient, confronting when necessary, flexible, professional, trustworthy, attentive, inquisitive, imaginative, fair, and blessed with a sense of humor.

Specialties