Mediation 101
Mediation is a process in which a mediator facilitates the resolution of a dispute by listening to each party's needs, acknowledging their feelings and positions, exploring possible solutions for settling the dispute and facilitating agreement.
A mediator does not take sides, but works to help each side find its best solution. If both sides can agree to an outcome that meets their needs, then a settlement can be reached. If they cannot agree, then mediation can continue until the parties can agree.
Mediation is increasingly being used in the workplace, to resolve disputes between or within an organization or its employees. The main difference between the role of a mediator and a court is that there is no formal right or wrong outcome in mediation, which allows for both sides to be heard and accommodates compromises. However, if reaching an agreement proves impossible, then a court may be called upon.
According to the
American Arbitration Association, mediation is "a process for resolving issues amicably and helping parties reach agreements that may accommodate their interests. It can take place in a neutral setting outside of court and is used in both business and labor disputes."
There are three styles of mediation: parallel, sequential and social. Parallel mediation is one-on-one mediation in which both parties present their position separately to a third person who facilitates the process. The mediator then helps guide the parties to reach a compromise. Sequential mediation occurs when both parties present their positions at different times, with the mediator assisting each in turn. The mediator's role is to help narrow the differences between the parties and find common ground. In social mediation, a group of people who have gathered together to discuss a problem or conflict with one another may request mediation in order to settle that conflict more effectively. The third person helps facilitate that process.
Mediation is often contrasted with litigation, in which one or more parties have a formal right to sue another, often the defendant in a lawsuit. In the legal system, the goal of conflict resolution is to reach an agreement between all parties. For example, in a medical malpractice case, the goal of both doctors and plaintiffs is to reach an agreement where everyone's interests are protected and everyone benefits. In what is known as the American Arbitration Association, or AAA style mediation, attorneys are not usually involved. Here the goal is to reach a compromise between the parties to protect their interests and ensure a charitable outcome for all.
Mediation can be used in any type of dispute where two or more parties have opposing viewpoints and needs that need to be resolved. It is most often used where there has been an injury by someone (such as a doctor or an employer) against another person (often referred to as the victim). The injury keeps the victim from enjoying life, or receiving the compensation they deserve. The victim wants compensation and doesn't want to pursue a legal case through the traditional court system. Instead of pursuing litigation, they may choose to mediate their case with an impartial mediator who helps them reach a compromise, allowing both parties to receive their desired outcome. Mediation is also used where one party is not sure how a specific situation should be resolved (such as in divorce, custody or child support proceedings). Mediation is often helpful in resolving many types of cases including: employment, medical malpractice, real estate, insurance and child custody cases.
Mediation is also used to resolve problems between or within organizations. There are numerous benefits to using this process for conflict resolution. First, it can help employees who have conflicting views and needs. Second, it helps employees and managers gain a better understanding of each other's viewpoints, as well as to resolve disputes that cannot be resolved in other forums. Third, mediators can help organizations resolve conflict in an environment free from the politics that often accompany litigation. Fourth, mediation is often helpful for preparing for potential litigation by addressing potential defenses before any suit is filed. Fifth, mediation gives everyone the opportunity to express their views and needs without the threat of litigation or public backlash.
The term "civil mediation" is sometimes used to describe the process of reaching a voluntary and private agreement between the parties. The other forms of mediation, such as arbitration or adjudication, are sometimes called "legal mediation." In civil mediation (or civil litigation), only one person is suing another. In arbitration or adjudication, both parties are suing another person.
"Parents' Mediation," an approach developed by Barbara R. Neuman and Lorna S. A. Baxter, is a method for resolving disagreements between the parents of minor children about parenting conflict in court-ordered child custody and visitation cases.
Mediators can have many different types of training but legal mediation is primarily attested to be a training in evidence law as well as fundamental principles of dispute resolution, negotiation and writing narratives for others to understand.
Conclusion-based mediation is in some contexts better than other forms of mediations as it is seen as a more flexible way of mediating. For example, in criminal cases, where there are witnesses that have been threatened or intimidated and do not wish to testify, the judge or the jury can make their judgement only on the facts that have been presented by both parties.
Mediation has been a feature of the Roman legal system for centuries. The use of mediation was set up as early as 495 BC.