One of the amazing things about mediation is that it is so many things. This column discusses some of the many things mediation is and some of the people who act as mediators.
Mediation is school yard intervention. From kindergarten through twelfth grade, mediation is part of the education community and is supervised by school teachers and conducted by specially trained peer group mediators in the same classes as the parties in conflict.
In a growing number of schools, a mediator is a student in a federally funded initiative to reduce conflict and violence in schools.
Mediation is a part of the juvenile criminal justice system. For non-violent offenders, victim-offender mediation is a process where community volunteers, under the supervision of the criminal justice system caseworkers, help both sides humanize and rehabilitate each other.
In many communities, a mediator is an unpaid volunteer with three to six hours of training in a state funded program who helps kids get back on the right track.
Mediation is a part of family counseling for people getting divorced. Mediation is a way for families who are splitting into parts to learn to deal with the changes in roles, duties and opportunities and to face those changes with emotional balance.
To many, mediation is a special form of family counseling handled by licensed family counselors and therapists.
Mediation is a part of the civil court system where parties to law suits are aided in settlement negotiations aimed at helping them find their own best interest.
To most bar associations, mediation is something practiced by attorneys who have been through a 40 hour program and who accelerate negotiations.
Mediation is a part of community action and conflict resolution, a place where volunteers, often with the Better Business Bureau or Community Alternative Dispute Resolution Centers, resolve conflicts and problems that otherwise would end up in small claims court.
To many, mediation is an alternative to the formal justice system, not a part of it, conducted by "real human beings" rather than lawyers.
Mediation is a labor conflict resolution tool aimed at finding a better way. Drawing from a wide pool of talent and skills, labor mediation seeks to end conflict and improve feelings in the workplace.
To many, mediation is a way to get to the bottom line and to find compromise without fighting using a group of mediators who defy definition other than experience.
Institutional mediation is conflict avoidance, a form of human resources management that aims to resolve conflict and improve communication between those served and the institution and between the different members of the institution.
To many in large hospitals, churches and other diverse organizations, mediation is a method of ensuring communication and that problems are resolved rather than ignored, cured rather than allowed to fester.
Mediation is what diplomats do to prevent countries from going to war or to help countries at war find peace. From the Middle East to Bosnia, mediation is the resolution, by political means, of armed conflict.
To quote from the Texas Law Review, A Glass Half Full at Vol. 73:1594, mediation is "something better" "more accessible and understandable to the layperson, less adversarial, expensive, and time-consuming, and more likely to produce an outcome that matches the interests of the disputants."
So, having discussed "what is mediation" the second question is "what makes -that- mediation?"
WHAT MAKES IT MEDIATION?
Successful mediation as an alternative method of dispute resolution, in all of these contexts, is mediation because it has the following five elements:
1. An impartial third party facilitator.
The third party neutral, the mediator, is the person who makes the entire process work. As long as there is a neutral facilitator, the parties can trust that they have some safety and are not being abused by an interested party. All of these programs work because the mediator in them is known to either be neutral or supportive of the parties and not an involved party.
Thus the first thing that makes a process one of mediation (and not something else) is a third party who facilitates -- aids the parties in a neutral fashion to find the parties own best interests.
2. A third party who protects the integrity of the proceedings.
Usually this means that the facilitator or mediator protect the confidentiality of the proceedings. Thus, not only does the mediator not take sides against any party to the mediation, the mediator does not usurp the parties' rights to disclose, or not disclose information. The mediator preserves the integrity of the proceedings in all ways.
Generally this means many things -- such as there are no records kept by the mediator. When there is no record, it becomes much harder to breach confidentiality or to try to use the mediator to prove or force a particular point not finalized in the parties agreement. In fact, some ADR groups and centers require the parties to take all notes on provided paper and then take and destroy even the notes after each session.
Confidentiality also means that the facilitator is not subject to subpoena and thus cannot be made a witness. Without notes or the facilitator, the only method to breach confidentiality is the testimony of an interested party who is usually bound by law (and thus subject to being quashed) not to disclose more than is agreed.
3. Good faith from the participants.
Good faith includes not only entering into the ADR method with the intent to work towards a resolution, it also includes not using the process for outside purposes. Thus there are rules that provide for no service of process during ADR, and for similar bars to the abuse of the mediation process by attorneys and non-attorneys alike.
What makes all of the proceedings mediation is that the parties are in the process to seek solutions rather than for an ulterior purpose (e.g. to abuse the other party by use of the process). Both the behavior and integrity of the neutral are important in creating, and preserving good faith.
4. The presence of the parties
Those with full authority to act for the parties must attend so that the parties can work towards resolution. If the decision makers do not attend the process becomes something other than mediation.
All parties necessary to resolve the problems should interact with the mediator. In a family dispute, if a party always checks with his parents before acting, the parents should attend (and may need a referral to additional counseling). In a labor matter, if a company president always checks with the majority shareholder, the majority shareholder should attend.
It is the parties who are being resolved as much as it is the problem that is being settled.
5. An appropriate site or venue.
Generally this means a neutral site that is conducive to the process. It must mean a place where neutrality, confidentiality and inclusiveness may be obtained. The place is some times as important as the persons and is a part of the process often overlooked.
Mediation means many things. Often the different meanings are in harmony and improve each other -- which is why so many family and other disputes involve co-mediators. However, successful mediation in all of its guises requires several factors to make it work and to ensure that it remains the "something better" that the public has come to think mediation really means.
Good books on the topic include:
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