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Mediation

By
Chris Honeyman

Updated April 2013

 

Definition:

This flexible and highly varied process includes any situation in which a person gets involved in a conflict between two or more other people (or groups) to help them resolve it, but has no power to make anyone do anything in particular.

Users:

Mediation is now widely used in all sorts of disputes, ranging from divorces to civil lawsuits to very complex public policy problems. Most disputes that have not responded to an initial attempt at negotiation can still be settled through mediation, so this concept is potentially important to anyone who negotiates — in other words, just about everybody.

Description:

Although a mediator cannot force an outcome, the process is very often effective. The key is the ability of the mediator to create a more productive discussion than the parties could have had by themselves. To do this, mediators help the parties determine facts; show empathy and impartiality with the parties; and help the parties generate new ideas. They also use persuasion and exercise political skill; often, though not always, they have lots of background knowledge of the issues and type of dispute. Though many mediators are highly trained and experienced, not all are professionals, and they come from many different walks of life.

Lawyers often believe that the purpose of mediation is rapid and efficient settlement of a particular case. But others disagree. Sometimes the purpose of a mediation is more to improve relationships among parties who will have to deal with each other again, or even to help them learn how best to handle conflict with other parties in the future. Often, a mediator has to learn which of these purposes is most important to the parties in a particular case, and tailor the service to match, but different mediators tend to specialize in one variety of mediation or another.

While many mediators pride themselves on their neutrality, some observers believe that it is impossible for a human being to be truly neutral. Others have concluded that even biased mediators can be useful, as long as the bias is not hidden from any party and parties have an opportunity to protect themselves against its effects. International mediations are often of this type, because an effective international mediator is often a foreign minister or president of an influential country, even though everyone understands that the mediator's country has interests of its own. President Carter's mediation between Egypt and Israel is an example.

Example:

A high school student sits down with two others to help them stop fighting; many miles away, the Secretary-General of the United Nations is chairing a meeting of 15 ambassadors who are trying to avert a war. These two situations may not seem to have much in common. But both are forms of mediation.

Application:

In virtually every situation where negotiation is not going well, or where for one reason or another it seems impossible to get a real discussion going with the other party or parties, it's worth asking whether bringing in someone else might at least help get communication going. That someone else is likely to be, or act as, a mediator. While parties' understanding of this process varies from setting to setting, in some places it is now routine to use mediators where two decades ago there was no practice to speak of; for example, the courts of the state of Florida alone now refer approximately 150,000 cases per year to mediation, rather than expecting the parties to fight their disputes out in trials or to work out settlements without third-party help.

Links to Related Articles:

Alternative Dispute Resolution (ADR)
Arbitration
How to Find a Mediator
Mediator Certification, Credentialing, and Rosters

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