Mediation

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Mediation, a form of alternative dispute resolution (ADR), aims to assist two (or more) disputants in reaching an agreement. The disputes may involve states, organisations, communities, individuals or other representatives with a vested interest in the outcome.

Mediators use appropriate techniques and/or skills to open and/or improve dialogue between disputants, aiming to help the parties reach an agreement (with concrete effects) on the disputed matter. Normally, all parties must view the mediator as impartial.

Mediation can apply in a variety of disputes. These include commercial, legal, diplomatic, workplace, community and divorce or other family matters.

History of dispute mediation

The activity of mediation in itself appeared in very ancient times. Historians presume early cases in Phoenician commerce (but suppose its use in Babylon, too). The practice developed in Ancient Greece (which knew the non-marital mediator as a proxenetas), then in Roman civilization, (Roman law (starting from Justinian's Digest of 530 - 533) recognized mediation. The Romans called mediators by a variety of names, including internuncius, medium, intercessor, philantropus, interpolator, conciliator, interlocutor, interpres, and finally mediator.

The Middle Ages regarded mediation differently, sometimes forbidding the practice or restricting its use to centralized authorities. Some cultures regarded the mediator as a sacred figure, worthy of particular respect; and the role partly overlapped with that of traditional wise men.

Mediation and conciliation

Much debate has focussed on the distinction between conciliation and mediation, and no universal agreement has emerged.

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"Conciliation" sometimes serves as an umbrella-term that covers all mediation and facilitative and advisory dispute-resolution processes. Neither processes determines an outcome, and both share many similarities. For example, both processes involve a neutral third-party who has no enforcing powers.

One significant difference between conciliation and mediation lies in the fact that conciliators possess expert knowledge of the domain in which they conciliate. The conciliator can make suggestions for settlement terms and can give advice on the subject-matter. Conciliators may also use their role to actively encourage the parties to come to a resolution. In certain types of dispute the conciliator has a duty to provide legal information. This helps any agreement reached to comply with any relevant statutory framework pertaining to the dispute. Therefore conciliation may include an advisory aspect.

Mediation works purely facilitatively: the practitioner has no advisory role. Instead, a mediator seeks to help parties to develop a shared understanding of the conflict and to work toward building a practical and lasting resolution.

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Both mediation and conciliation serve to identify the disputed issues and to generate options that help disputants reach a mutually-satisfactory resolution. They both offer relatively flexible processes; and any settlement reached should have the agreement of all parties. This contrasts with litigation, which normally settles the dispute in favour of the party with the strongest argument.

Mediation in the franchising sector

Franchise-agreements signify an ongoing commercial agreement between the contracting parties. The agreements usually have elements of an imbalance of bargaining power and business experience between the franchisee and franchisor; and the parties also face many external commercial pressures.

The franchising code of conduct is a mandatory code under the TPA. All franchise agreements must have a clause that requires dispute resolution. Mediation in this field works because it can identify alternatives for the parties and then the parties can work together to solve the dispute. For this type of mediation there are more formal procedures such as who ever wishes to initiate the mediation is required to advise the respondent in writing outlining the nature of the dispute and they will then have three weeks to agree to a method of resolving the dispute otherwise they may go to mediation.

Mediator education and training

Suitable education and training for mediators becomes a complex issue — largely due to the breadth of areas which may call on mediation as a means of dispute resolution. Debate ensues on what constitutes adequate training on the principles of mediation as well as what personal attributes an individual needs in order to effectively fulfill the mediator’s role.

The educational requirements for accreditation as a mediator differ between accrediting groups and from country to country. In some cases legislation mandates these requirements; whilst in others they are set by professional bodies and applicants must comply prior to being accredited by them.

In Australia, for example, for professionals wanting to practice in the area of Family Law must have tertiary qualifications in Law or Social Science, undertaken 5 days training in mediation and engaged in at least 10 hours of supervised mediation. Furthermore they must also undertake 12 hours of mediation education or training every 12 months.

Tertiary institutions globally offer units in mediation across a number of disciplines such as law, social science, business and the humanities. In Australia not all fields of mediation work require academic qualifications, as some deal more with the practical skills rather than with theoretical knowledge, to this end membership organizations such as LEADR provide training-courses to further the adoption and practice of mediation.

No legislated national or international standards on the level of education which should apply to all mediation practitioner’s organizations exist. However, organisations such as the National Alternative Dispute Resolution Advisory Council (NADRAC) in Australia continue to advocate for a wide scope on such issues. This in not the case in other jurisdictions such as Germany which advocates a higher level of educational qualification for practitioners of mediation.

Mediator codes of conduct

The application of a code of conduct to the practice of mediation becomes problematic — due in part to the diverse number and type of practitioners in the field. There is a tendency for professional societies to develop their own codes of conduct which are extended to their own members. Examples of this in Australia include the mediation codes of conduct developed by the Law Societies of South Australia and Western Australia and those developed by organisations such as LEADR for use by their members.

Writers in the field of mediation normally espouse a code of conduct that mirrors the underlying principles of the mediation process. In this respect some of the most common aspects of a mediator codes of conduct include:

• A commitment to inform participants as to the process of mediation.
• Mediators must adopt a neutral stance towards all parties to the mediation, revealing any potential conflicts of interest.
• The mediator must conduct the mediation in an impartial manner.
• Within the bounds of the legal framework under which the mediation is undertaken any information gained by the mediators should be treated as confidential.
• Mediators should be mindful of the psychological and physical wellbeing of all the mediations participants.
• Mediators should not offer legal advice, rather they should direct participants to appropriate sources for the provision of any advice they might need.
• Mediators should seek to maintain their skills by engaging in ongoing training in the mediation process.
• Mediators should practice only in those fields in which they have expertise gained by their own experience or training.

Accreditation of ADR

Australia has no national accreditation system for ADR. However following the National Mediation Conference in May 2006, the National Mediation Accreditation Standards system apears to be moving to Implementation phase.http://www.mediationconference.com.au/html/Accreditation.html#draft

ADR practitioners recognize that mediators (as distinct from arbitrators or conciliators) need to be recognized as having professional accreditations the most. There are a range of organizations within Australia that do have extensive and comprehensive accreditations for mediators but people that use mediation are unsure as to what level of accreditation is required for the quality of service that they receive. Standards will tend to vary according to the specific mediation and the level of specificity that is desired. Due to the wide range of ADR processes that are conducted it would be very difficult to have a set of standards that could apply to all ADR processes, but standards should be developed for particular ADR processes

Clients need the assurance that mediators have some form of ongoing assessment and training throughout their careers. Mediators are required to satisfy different criteria to be eligible for a variety of mediator panels. Also different mediator organizations have different ideals of what makes a good mediator which in turn reflects the training and accreditation of that particular organization. Selection processes for ADR practitioners are based on the needs of the service, but a problem is posed when organizations, such as the court want to refer a client to mediation and they usually have to rely on their in-house mediators or rely on word of mouth. There are inconsistent standards. A national accreditation system could very well enhance the quality and ethics of mediation and lead mediation to become more accountable. There is a need for a unified accreditation system for mediators across Australia to establish clarity and consistency.

reference links http://www.ag.gov.au/agd/WWW/disputeresolutionHome.nsf/Page/Publications_All_Publications_Framework_for_ADR_Standards

http://www.ag.gov.au/agd/WWW/disputeresolutionHome.nsf/Page/Publications_All_Publications_Development_of_Standards

Boulle, L. (2005). Mediation: Principles Processes Practices. LexisNexis Butterworths. p 348.

Uses of mediation

One core problem in the dispute resolution process involves the determination of what the dispute is actually about. Through the process of mediation participants can agree to the scope of the dispute or issues to be resolved. Examples of this use of mediation in the Australian jurisdiction include narrowing the scope of legal pleadings and its use in industrial and environmental disputes.

Definition of the nature of a dispute can often clarify the process of determining what method will best suit its resolution.

One of the primary uses of mediation involves parties using the mediation process to define the issues, develop options and achieve a mutually-agreed resolution.

Australia has incorporated mediation extensively into the dispute-settlement process of family law and into the latest round of reforms concerning industrial relations under the WorkChoices amendments to the Workplace Relations Act.

Where prospects exist of an ongoing disputation between parties brought on by irreconcilable differences (stemming from such things as a clash of religious or cultural beliefs), mediation can serve as a mechanism to foster communication and interaction.

Mediation can function not only as a tool for dispute resolution but also as a means of dispute prevention. Mediation can be used to facilitate the process of contract negotiation by the identification of mutual interests and the promotion of effective communication between the two parties. Examples of this use of mediation can be seen in recent enterprise bargaining negotiations within Australia.

Mediation can also be used by governments to inform and seek input from stakeholders in formulation or fact seeking aspects of policy making. Mediation in wider aspect can also be used in to prevent conflict or develop mechanisms to address conflicts as they arise.

Philosophy of mediation

Mediation, in a broad sense, consists of a cognitive process of reconciling mutually interdependent, opposed terms as what one could loosely call "an interpretation" or "an understanding of". The German philosopher Hegel uses the term 'dialectical unity' to designate such thought-processes. This article discusses the legal communications usage of the term. Other Wikipedia articles, such as Critical Theory, treat other usages or "senses" of the term mediation, as for example cultural and biological.

The Uses of Mediation in Preventing Conflicts

Mediation is a very usual tool that can be adopted to anticipate problems, grievances and difficulties between parties before the conflict may arise. This has potential applications in large and private sector organisations, particularly where they are subject to excessive change, competition and economic pressure. A key way mediation is used to prevent these conflicts is complaint handling and management. This is a conflict prevention mechanism designed to handle a complaint effectively at first contact and to minimise the possibility of it developing into a dispute. According to Charlton (2000, p.4) a person who undertakes this role is commonly known as a “dispute preventer”.

While the corporate sector may be one option to use the mediation process as preventing conflicts dealing with everyday life’s disputes is another. This is no more evident in neighbourhood conflict. Your behaviour affects your neighbours, just as what they do affects you. The key way to prevent conflicts with neighbors is to be a good neighbour yourself. Spencer and Altobelli (2005, p. 17) believe simple consideration and conversation with neighbours helps achieve a peaceful coexistence. Making it is easier for you to live as privately or as sociably as you wish. Here are several ideal suggestions that should be considered for preventing conflicts between neighbours: Meet your neighbours, keep your neighbours informed, be aware of differences, be appreciative, consider your neighbours point of view, be candid, communication and respectful.

Mediation can also be employed to reduce or prevent violence in sports and in schools. Using peers as mediators is a process known as “peer mediation” This process highlighted by (Charlton, 2000, p.5) is a popular way of handling conflicts and preventing violence in primary schools, high schools and sporting activities. Schools adopting this process often recruit and train students interested in being peer.

In general communication is the ideal way to prevent and resolve any conflict, by talking things over along with listening is the best way to handle problems and this should ultimately avoid the dispute going to the courts.

Responsibilities Regarding Confidentiality in Mediation

One of the hallmarks of mediation is that the process is strictly confidential. The mediator must inform the parties that communications between them during the intake discussions and the mediation process are to be private and confidential. In general, the information discussed can never be used as evidence in the event that the matter does not settle at mediation and proceeds to a court hearing. Spencer and Altobelli (2005, p. 261) point out it is considered common for parties entering into mediation to sign a mediation agreement document with the mediator. The parties therefore agree that it’s a condition of being present or participating in the mediation and the document if necessary may be deemed confidential by virtue of the common law.

Confidentiality is central to mediation. It is imperative for parties to trust the process. Very few mediations will ever succeed unless the parties can communicate fully and openly without fear of compromising their case before the courts. Charlton and Dewdney (2004, p. 344.) highlight mediation confidentiality is seen as one of the key ingredients to encourage disputing parties to negotiate with each other in order to achieve a settlement of their dispute.

Organisations have often seen confidentiality as a reason to use mediation ahead of litigation, particularly when disputes arise in sensitive areas of their operation or to avoid their affairs being publicised among business competitors, acquaintances or friends. Steps put in place during mediation to help ensure this privacy include;

1. The mediation meeting is conducted behind closed doors.

2. Outsiders can only observe proceedings with both parties consent.

3. No recording of the transcript is kept; and

4. There is no external publicity on what transpired at the mediation.

There is no doubt confidentiality contributes to the success and integrity of the mediation process. But no matter what agreements or policies and how many times the mediator informs the parties the information discussed during mediation is confidential. Can a mediator ever really guarantee full confidentiality protections between parties will occur?

Legal Implications of Mediated Agreements

Parties who enter into mediation do not forfeit any legal rights or remedies. If there is no settlement during the mediation, each side can continue to enforce their rights through appropriate court or tribunal procedures. However, if a settlement has been reached through mediation, legal rights and obligations are affected in differing degrees. In some situations, the parties may only wish to have a memorandum or a moral force agreement put in place; these are often found in community mediations. In other instances, a more comprehensive deed of agreement is drafted and this deed serves to bring a legally binding situation. Charlton and Dewdney (2004, p. 126.) point out that a mediated agreement may be registered with the court to make it legally binding and it is advisable to have a lawyer prepare the form or, at the very least, to obtain independent legal advice about the proposed terms of the agreement.

Mediation has opened the door for parties in conflict to resolve their differences through non-traditional judicial forums. Over the last few decades, mediation has brought to light the processes, or alternatives to litigation, that enable parties to resolve their differences without the high cost associated with litigation. An interesting remark made by Spencer and Altobelli (2005, p. 223): "Court systems are eager to introduce mandatory mediation as a means to meet their needs to reduce case loads and adversarial litigation, and participants who understand the empowerment of mediation to self-determine their own agreements are equally as eager to embrace mediation as an alternative to costly and potentially harmful litigation."

Recently, mediation has come under the spotlight and the watchful eye of many state legal systems for its ability to resolve party disputes, reduce court case loads, and reduce overall legal costs. Yet while parties enter into mediation intending to preserve their legal rights and remedies, mediation may result in these rights being directly or indirectly affected. Parties that have resolved their conflict through this voluntary process and settled on an agreement should seek legal advice if they are unsure of the consequences.

Common aspects of mediation

Mediation as a process involves a third party (often a neutral third party) assisting two or more persons, ("parties" or "stakeholders") to find mutually-agreeable solutions to difficult problems.

People make use of mediation at many different levels and in multiple contexts: from minor disputes to global peace-talks. This makes it difficult to provide a general description without referring to practices in specific jurisdictions — where "mediation" may in fact have a formal definition and in some venues may require specific licenses. This article attempts only a broad introduction, referring to more specific processes (such as peace process, binding arbitration, or mindful mediation) directly in the text.

While some people loosely use the term "mediation" to mean any instance in which a third party helps people find agreement, professional mediators generally believe it essential that mediators have thorough training, competency, and continuing education. The term is also sometimes incorrectly used to refer to arbitration; a mediator does not impose a solution on the parties, whereas an arbitrator does.

While mediation implies bringing disputing parties face-to-face with each other, the strategy of "shuttle diplomacy", where the mediator serves as a liaison between disputing parties, also sometimes occurs when face-to-face mediations are not possible.

Some of the types of disputes or decision-making that often go to mediation include the following:

Family:

• Prenuptial agreements
• Financial or budget disagreements
• Separation
• Divorce
• Financial distribution and spousal support (alimony)
• Parenting plans (child custody and visitation)
• Eldercare issues
• Family businesses
• Adult sibling conflicts
• Disputes between parents and adult children
• Estate disputes
• Medical ethics and end-of-life issues

Workplace:

• Wrongful termination
• Discrimination
• Harassment
• Grievances
• Labor management

Public disputes:

• Environmental
• Land use

Disputes involving the following issues:

• Landlord/tenant
• Homeowners' associations
• Builders/contractors/realtors/homeowners
• Contracts of any kind
• Medical malpractice
• Personal injury
• Partnerships
• Non-profit organizations
• Faith communities

Other:

• Youth (school conflicts; peer mediation);
• Violence prevention
• Victim-Offender mediation

Mediation commonly includes the following aspects or stages:

• a controversy, dispute or difference of positions between people, or a need for decision-making or problem-solving;
• decision-making remaining with the parties rather than imposed by a third party;
• the willingness of the parties to negotiate a "positive" solution to their problem, and to accept a discussion about respective interests and objectives;
• the intent to achieve a "positive" result through the facilitative help of an independent, neutral third person.

In the United States, mediator codes-of-conduct emphasize "client-directed" solutions rather than those imposed by a mediator in any way. This has become a common, definitive feature of mediation in the US and in the UK.

Mediation differs from most other adversarial resolution processes by virtue of its simplicity, informality, flexibility, and economy.

The typical mediation has no formal compulsory elements, although some common elements usually occur:

• each of the parties allowed to explain and detail their story;
• the identification of issues (usually facilitated by the mediator);
• the clarification and detailed specification of respective interests and objectives;
• the conversion of respective subjective evaluations into more objective values;
• identification of options;
• discussion and analysis of the possible effects of various solutions;
• the adjustment and the refining of the proposed solutions;
• the memorialization of agreements into a written draft

Due to the particular character of this activity, each mediator uses a method of his or her own (a mediator's methods are not ordinarily governed by law), that might eventually be very different from the above scheme. Also, many matters do not legally require a particular form for the final agreement, while others expressly require a precisely determined form.

Most countries respect a mediator's confidentiality.

Online mediation

Main article: Online dispute resolution

Online mediation, a sub-category of online dispute resolution, is the application of online technology to the process of mediation. Online Mediation extends the reach of mediators to disputes between persons who are too geographically distant, or otherwise(e.g. disability) unable, to attend, or where the value of the dispute does not justify the cost of, a face-to-face mediation.

Mediation in business and in commerce

The eldest branch of mediation applies to business and commerce^{[How to reference and link to summary or text]}, and still this one is the widest field of application, with reference to the number of mediators in these activities and to the economical range of total exchanged values.

The mediator in business or in commerce helps the parties to achieve the final goal of respectively buying/selling (a generic contreposition that includes all the possible varieties of the exchange of goods or rights) something at satisfactory conditions (typically in the aim of producing a bilateral contract), harmonically bringing the separate elements of the treaty to a respectively balanced equilibrium. The mediator, in ordinary practice, usually cares of finding a positive agreement between (or among) the parties looking at the main pact as well as at the accessory pacts too, thus finding a composition of all the related aspects that might combine. in the best possible way, all the desiderata of his clients.

This activity is sometimes scholastically included among those of the auxiliary activities of commerce and business, but it has to be recalled that it differs from the generality of the others, because of its character of independence from the parties: in an ordinary activity of agency, or in the unilateral mandate this character is obviously missing, this kind of agent merely resulting as a longa manus of the party that gave him his (wider or narrower) power of representation. The mediator does not obey to any of the parties, and is a third party, looking at the contraposition from an external point of view.

Subfields of commercial mediation include work in well-known specialized branches: in finance, in insurance, in ship-brokering, in real estate and in some other individual markets, mediators have specialized designations and usually obey special laws. Generally, mediators cannot practice commerce in the genre of goods in which they work as specialized mediators.

Mediation and litigation

Mediation offers a process by which two parties work towards an agreement with the aid of a neutral third party. Litigation, however, is a process in which the courts impose binding decisions on the disputing parties in a determinative process operating at the level of legal rights and obligations [Boulle 2005]. These two processes sound completely different, but both are a form of dispute resolution. Litigation is conventionally used and conventionally accepted, but Mediation is slowly becoming more recognized as a successful tool in dispute resolution. Slowly these processes are becoming inter-dependent, as the Courts in some cases are now referring parties to Mediation. In saying this, there are distinct differences between the two processes. Mediation claims to resolve many of the problems associated with litigation, such as the high costs involved, the formality of the court system and the complexity of the court process. Mediation does not create binding agreements unless the parties consent to it, and the Mediator has no say in the outcome. Even though our court system and mediation have increasing connections, they still reflect different value assumptions and structural approaches towards dispute resolution.

Community mediation

Disputes involving neighbors often have no formal dispute-resolution mechanism. Community mediation centers generally focus on this type of neighborhood conflict, with trained volunteers from the local community usually serving as mediators. These organizations often serve populations that cannot afford to utilize the court systems or other private alternative dispute resolution providers. Many community programs also provide mediation for disputes between landlords and tenants, members of homeowners associations, and businesses and consumers. Mediation helps the parties to repair relationships, in addition to addressing a particular substantive dispute. Agreements reached in community mediation are generally private, but in some states, such as California, the parties have the option of making their agreement enforceable in court. Many community programs offer their services for free or at most, charge a nominal fee.

Competence of the mediator

Numerous schools of thought exist on identifying the "competence" of a mediator. Where parties retain mediators to provide an evaluation of the relative strengths and weaknesses of the parties' positions, subject-matter expertise of the issues in dispute becomes a primary aspect in determining 'competence'.

Some would argue, however, that an individual who gives an opinion about the merits or value of a case does not practise true mediation, and that to do so fatally compromises the alleged mediator's neutrality.

Where parties expect mediators to be process experts only (i.e., employed to use their skills to work through the mediation process without offering evaluations as to the parties' claims) competence is usually demonstrated by the ability to remain neutral and to move parties though various impasse points in a dispute. International professional organizations continue to debate what 'competency' means.

When is mediation suitable?

Not all disputes lend themselves well to mediation. One set of criteria for suitability, which is applied in the subsection below, is provided in Mediation - Principles Process Practice, Boulle L. 2005

Factors relating to the parties

Factors relating to the parties provide the most important determinants when deciding whether or not a dispute is suitable for mediation, as of course, the parties are the essential key to mediation. Basically, if the parties are not ready and willing to mediate, mediation cannot take place. If a mediation does take place against the parties wishes, the process will not work because one of the principles of mediation is participation, and the parties will not constructively participate if they are forced. Another factor to consider when judging a disputes suitability for mediation is whether the parties have legal representation. If one party does and the other does not, then it is not fair to mediate. Unlike the court system, a legal representative will not be appointed to the non-represented party. Therefore both parties need to consent to either be represented by legal advisers or not. It is not essential that legal advisers are present in the mediation session. However in most cases it is strongly advised that the parties seek legal advice before signing the legally binding agreement. A final factor to consider is the legal capacity of the parties. A minor cannot enter a mediation session for obvious legal reasons, the same goes for a person with mental illness or disability that would effect their decision making ability. Once these are considered and no difficulties found, the remaining points on the checklist need to be considered.

Mediation as a method of dispute resolution

In the field of resolving legal controversies, mediation is an informal method of dispute resolution, in which a neutral third party, the mediator, attempts to assist the parties in finding resolution to their problem through the mediation process. Although mediation has no legal standing per se, agreements between the parties can (usually with assistance from legal counsel) be committed to writing and signed, thus rendering a legally binding contract in some jurisdiction specified therein.

Mediation differs from most other conflict resolution processes by virtue of its simplicity, and in the clarity of its rules. It is employed at all scales from petty civil disputes to global peace talks. It is thus difficult to characterize it independently of these scales or specific jurisdictions - where 'Mediation' may in fact be formally defined and may in fact require specific licenses. There are more specific processes (such as peace process or binding arbitration or mindful mediation) referred to directly in the text.

Safety, fairness, closure

These broader political methods usually focus on conciliation, preventing future problems, rather than on focused dispute-resolution of one matter.

One can reasonably see mediation as the simplest of many such processes, where there is no great dispute about political context, jurisdiction has been agreed, whatever process selected the mediator is not in doubt, and there is no great fear that safety, fairness and closure guarantees will be violated by future bad-faith actions.

Assuming some warranty of safety, fairness, and closure, then the process can reasonably be called 'mediation proper', and be described thus:

Post-mediation activities

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Ratification and review

Some mediated agreements require ratification by an external body to which a negotiating party must account — such as a board, council or cabinet. In other situations it may be decided or understood that agreements will be reviewed by lawyers, accountants or other professional advisers after the mediation meeting. Ratification and review provide safeguards for mediating parties. They also provide an opportunity for persons not privy to the dynamics of a mediation and the efforts of the negotiating parties to undermine significant decisions they have made.

Official sanctions

In some situations the sanctions of a court or other external authority is required to validate a mediation agreement. Thus if a grandparent or other non-parent is granted residence rights in a family dispute, a court counselor will be required to furnish a report to the court on merits of the proposed agreement. parties to a private mediation may also wish to obtain court sanction for their decisions. Under the Queensland regulatory scheme on court connected mediation, mediators are required to file with a registrar a certificate about the mediation in a form prescribed in the regulations. A party may subsequently apply to a relevant court an order giving effect to the agreement reached. Where court sanction is not obtained, mediated settlements have the same status as any other agreements.

Referrals and reporting obligations

Mediators may at their discretion refer one or more parties to psychologists, accountants or social workers for post-mediation professional assistance. Where mediation is provided by a public agency, referrals are made to other authorities such as centrelink.

Mediator debriefing

In some situations, a post-mediation debriefing and feedback session is conducted between co-mediators or between mediators and supervisors. It involves a reflective analysis and evaluation of the process. In many community mediation services debriefing is compulsory and mediators are paid for the debriefing session.

Mediator roles and functions

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Mediator functions are classified into a few general categories, each of which necessitates a range of specific interventions and techniques in carrying out a general function;

Creating favorable conditions for the parties' decision-making

Mediators can contribute to the settlement of disputes by creating favorable conditions for dealing with them. This can occur through:

• Providing an appropriate physical environment- this is through selection of neutral venues, appropriate seating arrangements, visual aids and security.
• Providing a procedural framework- this is through conduct of the various stages of mediation process. As the chair of the proceedings, they can establish basic ground rules, provide order, sequence and continuity. The mediators opening statement provides an opportunity to establish a structural framework, including the mediation guidelines on which the process will be based.
• Improving the emotional environment- this is a more subtle function and varies among mediations and mediators. They can improve the emotional environment through restricting pressure, aggression and intimidation in the conference room by providing a sense of neutrality and by reducing anxiety among parties.

Assisting the parties to communicate

People in conflict tend not to communicate effectively and poor communication can cause disputes to occur or escalate. For mediators to encourage communication efficiently, they themselves must be good communicators and practice good speaking and listening skills, pay attention to non-verbal messages and other signals emanating from the context of the mediation.

Facilitating the parties' negotiations

Mediators can contribute expertise and experience in all models and styles of negotiation so that the parties are able to negotiate more constructively, efficiently and productively. This function is prominent after the problem-defining stages of mediation and involves mediators bringing direction and finesse to the negotiation efforts of the parties. Mediators can also act as catalysts for creative problem solving, for example by brainstorming or referring to settlement options generated in analogous mediation experiences.

Functions of the parties

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The functions of the parties will vary according to their motivations and skills, the role of legal advisers, the model of mediation, the style of mediator and the culture in which the mediation takes place. Legal requirements may also affect their roles. In New South Wales the Law Society has published A guide to the rights and Responsibilities of participants.

Preparation

Whether parties enter mediation of their own volition or because legislation obligates them to do so, they prepare for mediation in much the same way they would for negotiations, save that the mediator may supervise and facilitate their preparation. Mediators may require parties to provide position statements, valuation reports and risk assessment analysis. The parties may also be required to consent to an agreement to mediate before preparatory activities commence.

Disclosure of information

Agreements to mediate, mediation rules, and court-based referral orders may have requirements for the disclosure of information by the parties and mediators may have express or implied powers to direct them to produce documents, reports and other material. In court referred mediations parties usually exchange with each other all material which would be available through discovery or disclosure rules were the matter to proceed to hearing. this would include witness statements, valuations and statement accounts.

Party participation

The objectives of mediation, and its emphasis on consensual outcomes, imply a direct input from the parties themselves. There will be an expectation that parties attend and participate in the mediation meeting and some mediation rules require a party, if a natural person, to attend in person. However party participation is asessed in overall terms so failure to participate in the initial stages may be redeemed later in the process.

Choice of mediator

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The choice of mediation as a dispute resolution option is closely linked to the identity of a mediator who conducts it. This follows from the fact that there are different models of mediation, there are many mediator discretions in a flexible procedure, and the mediator's professional background and personal style have enormous potential impacts on the nature of the service provided. These factors make the selection of mediators of real practical significance.

The term "choice of mediator" implies a process of deliberation and decision making. There is no formal mechanism for objecting to the appointment of particular mediators but in practice the parties could ask for their withdrawal for conflict of interest reasons. In community mediation programs the director assigns mediators without party involvement. In New South Wales, for example, when the parties cannot agree on the identity of a mediator the registrar contacts a nominating entity, such as the Bar Association or LEADR, which supplies the name of a qualified and experienced mediator. The following are useful ways of selecting a mediator:

• Personal Attributes - qualities and characteristics which are innate, as opposed to skills and techniques which can be learned and developed. In this concept a number of desirable attributes for mediators include interpersonal skills, patience, empathy,intelligence, optimism and flexibility.
• Mediation qualifications, experience and background - while there are no generalized qualifications for mediators in some jurisdictions, in some specific contexts mediators require qualifications prescribed by legislation. In New South Wales, for example, the Family Law Act 1975 (Cth) proscribes qualifications for mediators. Qualifications usually revolve around knowledge of the theory and practice of conflict, negotiation and mediation, mediations skills, and attitudes appropriate for mediation. There are three factors of relevance: experience in practice of mediation, experience in the substantive area of dispute, and personal life experience.

Values of mediation

Mediation contains three aspects, feature, values and objectives. The three aspects, although different, can and do at times overlap in their meaning and use. There are a number of values of mediation including Non Adversarialism, Responsiveness and Self Determination and Party Autonomy.

Each Person, Mediator and Process has values that can be attributed to them. These values are as diverse as Human Nature itself and as such provides for no uniformity amongst the values and on how those values are enforced by each party.

The Non-adversarialism value of mediation is not based on the attitudes of the parties involved, but is based on the actual process of mediation and how it is carried out. To clarify the context of the meaning it is said that Litigation is adversarial as its process must come to a logical conclusion based on a decision made by a presiding judge. Mediation does not always end with a decision.

Responsiveness is another value of mediation. This value responds to the interests of the parties without the restrictions of the law. It allows the parties to come to their own decisions on what is best for them at the time. Responsiveness shows how the mediation process is informal, flexible and collaborative and is person centered.

Self-determination and party autonomy gives rise to parties being able to make their own choices on what they will agree on. It gives the parties the ability to negotiate with each other to satisfy their interests, generate some options which could lead to an outcome satisfactory to both parties. This autonomy or independent structure provided by the mediation process removes the need for the presence of professional bodies and turns the responsibility back on to the parties to deal with the issue and hopefully to a satisfactory conclusion.

Mediation with arbitration

Mediation has sometimes been utilized to good effect when coupled with arbitration, particularly binding arbitration, in a process called 'mediation/arbitration'. In this process, if parties are unable to reach resolution through mediation, the mediator becomes an arbitrator, shifting the mediation process into an arbitral one, seeking additional evidence as needed (particularly from witnesses, if any, since witnesses are normally not called upon by a mediator), and finally rendering an arbitral decision.

This process is more appropriate in civil matters where rules of evidence or jurisdiction are not in dispute. It resembles, in some respects, criminal plea-bargaining and Confucian judicial procedure, wherein the judge also plays the role of prosecutor - rendering what, in Western European court procedures, would be considered an arbitral (even 'arbitrary') decision.

Mediation/arbitration hybrids can pose significant ethical and process problems for mediators. Many of the options and successes of mediation relate to the mediator's unique role as someone who wields coercive power over neither the parties nor the outcome. If parties in a mediation are aware the mediator might later need to act in the role of judge, the process could be dramatically distorted. Thankfully, mediation-arbitration often involves using different individuals in the role of mediator and (if needed later) arbitrator, but this is not always the case.

Mediator liability

Mediators should take necessary precautions to protect themselves, as they are putting themselves in a vulnerable position in terms of liability. Mediators need to be qualified and properly trained before they can mediate a legally binding mediation. In mediation, there are a number of situations in which liability could arise. For example, a mediator could be liable for misleading parties about the process and/or process of alternative dispute resolution. If a mediator deems mediation as the correct dispute resolution, when in actual fact the dispute is not suitable, the mediator can be held liable. A breach of confidentiality on the mediators behalf could result in liability. These situations can all lead to court proceedings, although this is quite uncommon. Only one case has been recorded in Australia so far. There are three areas in which liability can arise for the mediator:

Liability in Contract

Liability in Tort

Liability for Breach of Fiduciary Obligations.

Liability in Contract arises if the Mediator breaches contract between themselves and one or both of the parties. This can be in written or verbal contract. There are two forms of breach - failure to perform and anticipatory breach. The latter is harder to prove because the breach has not yet happened. If the breach is proven in can result in damages awarded. The damages awarded are generally compensatory in nature, very rarely pecuniary. Limitations on liability include causation. Liability arises in Tort if a mediator influences a party in any way to compromise, defames a party breaches confidentiality, or most commonly, can be liable for negligence. To be awarded damages, the party must show suffering of actual damage, and must show if was the mediator not the parties actions which caused the damage. Liability for Breach of Fiduciary Obligations can occur if parties misconceive their relationship with the Mediator for something other than completely neutral. The mediators role is to remain neutral at all times but the parties could misinterpret the relationship to be a fiduciary one.

Mediators' liability – in Tapoohi v Lewenberg

Tapoohi v Lewenberg is the only case in Australia to date that has set a precedent for mediators' liability.

It is based on two sisters who settled a deceased estate via mediation. Only one sister was present at the mediation and the other attended via telephone with her lawyers present. A deal was struck up and an agreement was executed by the parties. At the time it was orally expressed that before the final settlement was to occur there was requirement for taxation advise to be sought as such a large transfer of property would encompass some capital gains tax to be paid.

Tapoohi was required to pay Lewenberg $1,4 million dollars in exchange for some transfers of land. One year later when the capital gains tax was recognized by Tapoohi she filed proceedings against her sister, lawyers and the mediator based on the fact that the agreement was subject to further advise being sought in relation to taxation.

The mediator’s agreement was done verbally and there was no formal agreement only a letter stating his appointment. Tapoohi, a lawyer herself, alleged that the mediator was in breach of his contractual duty, bear in mind there was no formal agreement, and further alleged several breaches on his tortuous duty of care.

Although the summary judgment was dismissed the case shows that the mediator owes a duty of care to all parties and can be held liable should they breach them. Habersberger J held that it was “not beyond argument” that the mediator could well be in breach of contractual and tortuous duties. Such claims were required to be made out at a hearing but a trial court.

Due to the nature of this case it brings about the need for mediators agreements to be formal and include clauses that would limit their liability.

Liability in the United States

Note the differences between the legal definition of civil mediation in the United States of America and mediation in other countries. Compared with the situation elsewhere, mediation appears more "professionalized" in the United States, where State laws regarding the use of lawyers as opposed to mediators may differ widely. One can best understand these differences in a more global context of variances between countries.

Within the United States, the laws governing mediation vary greatly on a state-by-state basis. Some states have fairly sophisticated laws concerning mediation, including clear expectations for certification, ethical standards, and protections preserving the confidential nature of mediation by ensuring that mediators need not testify in a case they've worked on. However, even in states that have such developed laws around mediation, that law only relates to mediators working within the court system. Community and commercial mediators practicing outside the court system may very well not have these same sorts of legal protections.

Liability insurance is often an option professional mediators consider. It has traditionally been marketed through professional dispute resolution organizations.

Without-prejudice privilege

The without-prejudice privilege in common law terms denotes that when in honest attempts to reach some type of settlement any offers or admissions cannot be used in a court of law when the subject matter is the same. This further applies to negotiations that are made as part of the mediation process. There are however some exceptions to the without privilege rule.

The without prejudice privilege emerges clearly from the description of the case AWA Ltd v Daniels (t/as Deloitte Haskins and Sells). AWA Ltd commenced proceedings in the Supreme Court of NSW against Daniels for failing to audit their accounts properly. Mediation was ordered and failed. But during the mediation AWA Ltd disclosed that they had a document that gave its directors full indemnity with respect to any legal proceedings. AWA Ltd was under the impression that they gave this information without prejudice and therefore it could not be used in a court of law. When mediation failed litigation resumed.

During the litigation Daniels asked for a copy of the indemnity deed. AWA Ltd claimed privilege, but the presiding Rolfe J, stated that privilege was not applicable as the document was admissible. Further to this Rolfe, J added that Daniels was “only seeking to prove a fact which was referred to in the mediation”.

The without prejudice privilege does not apply if it has been excluded by either party or if the rights to the privilege has been waived in proceedings and it must be remembered that although a mediation is private and confidential, the disclosure of privileged information in the presence of a mediator does not represent a waiver of the privilege.

Mediation in politics and in diplomacy

Mediation is typically one of the most important activities of diplomats, and some people consider that it should be a relevant quality of democratic politicians, given that usually in both these fields the explicitation of the respective mansions (on a formal basis, at least) require the achievement of agreements between separate entities of which the diplomat or the politician are third parties by definition; Hobbes and Bodin found that the organs of a state have a mediating power and function.

These activities are usually performed in order to get, on the subjective point of view of this mediator, a recompense that might be in the form of a direct economical advantage, a political advantage, an increased international prestige or influence.

One of many non-violent methods of dispute resolution

In politics and in diplomacy, mediation obviously offers a non-violent method of dispute resolution (some indeed argue that other methods would be many), although it is usually assumed or included in definitions of other methods.

Some theorists, notably Rushworth Kidder, have claimed that mediation is the foundation of a new (some say 'postmodern') ethics - and that it sidesteps traditional ethical issues with pre-defined limits of morality.

Others claim that mediation is a form of harms reduction or de-escalation, especially in its large-scale application in peace process and similar negotiation, or the bottom-up way it is performed in the peace movement where it is often called mindful mediation. In this form, it would be derived from methods of Quakers in particular.

Mediation and industrial relations

According to Boulle (2005, p. 286), conciliation and ADR began in Industrial relations in Australia long before the arrival of the modern ADR movement. One of the first statues passed by parliament was the Conciliation and Arbitration Act 1904 (Cth). This allowed the Federal Government to pass laws on conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one state. In Australian industrial relations, conciliation has been the most prominently used form of ADR, and is generally far removed from modern mediation.

There has been a significant change in state policy concerning Australian industrial relations over the past decade. The Howard government with the introduction of the Workplace Relations Act 1996 (Cth) sought to shift the industrial system away from a collectivist approach, where there was a strong role for unions and the AIRC, to a more decentralized system of individual bargaining between employers and employees (Bamber et al, 2000, p.43). The WRA Act 1996 (Cth) diminished the traditional role of the AIRC, by placing the responsibility of resolving disputes at the enterprise level (Boulle, 2005, p. 287). This allowed mediation to be used to resolve industrial relations disputes instead of the traditionally used conciliation.

The new ‘Work Choices’ Amendment came into effect in March 2006, which has included a compulsory model dispute resolution process that doesn’t involve the AIRC. Mediation and other ADR processes have been encouraged by the government as a better option than the services provided by the AIRC. The government has realized the benefits of mediation to include the following (Van Gramberg, 2006, p.11):

• Mediation is cost saving
• Avoids polarization of parties
• Is educative
• Probes wider issues than the formal court system
• Provides greater access to justice
• Gives disputants more control over the dispute process

The workplace and mediation

Mediation emerged on the Industrial Relations landscape in the late 1980’s due to a number of economic and political factors, which then induced managerial initiatives. According to Van Gramberg (2006, p. 173) these changes have come from the implementation of human resource management policies and practices, which focuses on the individual worker, and rejects all other third parties such as unions, and the Australian Industrial relations Commission (AIRC). HRM together with the political and economic changes undertaken by the Howard government has created an environment where private ADR can be fostered in the workplace (Bamber et al, 2000, p. 45). The decline of unionism and the encouragement of individualization in the workplace have made way for the growth of private mediations. This is demonstrated in the industries with the lowest union rates such as in the private business sector having the greatest growth of mediation (Van Gramberg, 2006, p. 174).

Under the Howard governments new Work Choices Act, which came into effect on March 2006, there has been further legislative changes to deregulate the industrial relations system. A key element of the new changes was to weaken the powers of the AIRC in conciliation and arbitration by installing and encouraging private mediation in competition with the services provided by the AIRC.

Workplace Conflicts can cover a great variety of disputes. For example disputes between staff members, allegations of harassment, contractual disputes relating to the terms and conditions of employment and workers compensation claims (Boulle, 2005, p. 298). At large, workplace disputes are between people who have an ongoing working relationship within a closed system, which indicate that mediation would be appropriate as a means of a dispute resolution process. However in organisations there are many complex relationships, involving hierarchy, job security and competitiveness that make mediation a difficult task (Boulle, 2005, p. 298).

Conflict management

Conflict is perceived by society as something that gets in the way of progress. It is regarded as negative symptom of a relationship that should be cured as quickly as possible (Boulle, 2005, p. 87). However within the mediation profession conflict is seen as a fact of life and when properly managed it can have many benefits for the parties and constituents (Bagshaw, 1999, p. 206, Boulle, 2005, p. 87). The benefits of conflict include the opportunity to renew relationships and make positive changes for the future. Mediation should be a productive process, where conflict can be managed and expressed safely (Bradford, 2006, p. 148). It is the mediator’s responsibility to let the parties express their emotions entailed in conflict safely. Allowing the parties to express these emotions may seem unhelpful in resolving the dispute, but if managed constructively these emotions may help towards a better relationship between the parties in the future.

Measuring the effectiveness of conflict management

Within the ADR field there was a need to define the effectiveness of a dispute in a broader term, which included more than whether there was a settlement (Boulle, 2005, p. 88). Mediation as a field of dispute resolution recognized there was more to measuring effectiveness, than a settlement. Mediation recognised in its own field that party satisfaction of the process and mediator competence could be measured. According to Boulle (2005, p.88) surveys of those who have participated in mediation reveal strong levels of satisfaction of the process.

The benefits of mediation include:

• Discovering parties interests and priorities
• Healthy venting of emotions in a protected environment
• An agreement to talk about a set agenda
• Identifying roles of the constituents, such as relatives and professional advisors
• Knowledge of a constructive dispute resolution for use in a future dispute

Confidentiality and mediation

Confidentiality is a powerful and attractive feature of mediation (Van Gramberg, 2006, p. 38). The private and confidential aspect of mediation is in contrast with the courts and tribunals which are open to the public, and kept on record. Privacy is a big motivator for people to choose mediation over the courts or tribunals. Although mediation is promoted with confidentiality being one of the defining features of the process, it is not in reality as private and confidential as often claimed (Boulle, 2005, p. 539). In some circumstances the parties agree that the mediation should not be private and confidential in parts or in whole. Concerning the law there are limits to privacy and confidentiality, for example if their mediation entails abuse allegations, the mediator must disclose this information to the authorities. Also the more parties in a mediation the less likely it will be to maintain all the information as confidential. For example some parties may be required to give an account of the mediation to outside constituents or authorities (Boulle, 2005, p. 539).

There are two competing principles involving confidentiality of mediations. One principle is to uphold confidentiality as means to encourage people to settle out of the courts and avoid litigation, while the second principle is that all related facts to the mediation should be available to the courts.

There are a number of reasons why mediation should be kept private and confidential these include:

• It makes the mediation appealing
• It provides a safe environment to disclose information and emotions
• Confidentiality makes mediation more effective by making parties talk realisitically * Confidentiality upholds mediators reputation, as it reinforces impartiality
• Confidentiality makes agreement more final, as there is little room to seek review

Global relevance

The rise of international trade law, continental trading blocs, the World Trade Organization (and its opposing anti-globalization movement), use of the Internet, among other factors, seem to suggest that legal complexity has started to reach to an intolerable and undesirable point. There may be no obvious way to determine which jurisdiction has precedence over which other, and there may be substantial resistance to settling a matter in any one place.

Accordingly, mediation may come into more widespread use, replacing formal legal and judicial processes sanctified by nation-states. Some, like the anti-globalization movement, believe such formal processes have quite thoroughly failed to provide real safety and closure guarantees that are pre-requisite to uniform rule of law.

Following an increasing awareness of the process, and a wider notion of its main aspects and eventual effects, mediation is in recent times frequently proposed as a form of resolution of international disputes, with attention to belligerent situations too.

However, as mediation ordinarily needs to be required by the interested parties and it would be very difficult to impose it, in case one of the parts refuses this process it cannot be a solution.

Fairness

As noted, mediation can only take place in an atmosphere where there is some agreement on safety, fairness and closure, usually provided by nation-states and their legal systems. But increasingly disputes transcend those borders and include many parties who may be in unequal-power relationships.

In such circumstances, with many parties afraid to be identified or to make formal complaints, terminology or rules of standing or evidence slanted against some groups, and without power to enforce even "legally binding" contracts, some conclude that the process of mediation would not reasonably be said to be 'fair'.

Accordingly, even when it is offered and attempts are made to make it fair, mediation itself might not be a fair process, and other means might be pursued.

From a more technical point of view, however, one must recall that the mediation must be required by the parties, and very seldom can it be imposed by "non-parties" upon the parties. Therefore, in presence of entities that cannot be clearly identified, and that practically don't claim for their recognition as "parties", the professional experience of a mediator could only apply to a proposal of definition, that besides would always miss the constitutional elements of a mediation. Moreover, in such circumstances, the counter-party of these eventual entities would very likely deny any prestige of 'party' to the opponent, this not consenting any kind of treaty (in a correct mediation).

More generally, given that mediation ordinarily produces agreements containing elements to enforce the pacts with facts that can grant its effectiveness, note that the legal system is not the only means that will ensure protection of the pacts: modern mediation frequently tends to define economical compensations and warranties too, generally considered quicker and more effective. The concrete 'power' of an agreement is classically found in the equilibre of the pact, in the sincere conciliation of respective interests and in the inclusion of measures that would make the rupture of the pact very little convenient for the unfaithful party. Pacts that don't have such sufficient warranties are only academically effects of a mediation, but would never respect the deontology of the mediator.

See also

• Alternative Dispute Resolution
• Arbitration
• Child custody
• Conciliation
• Conflict resolution research
• Conflict Style Inventory
• Dispute resolution
• Divorce
• Intercultural competence
• Labor management relations
• Negotiation
• Nonviolent Communication
• Party directed mediation
• Transformative model of mediation

Bibliography

• Flemisch, Christiane A.: Streitbeilegung im internationalen Geschäft. Einführung in die Mediation als Methode der Streitbeilegung, in Außenwirtschaftliche Praxis (AW-Prax), 2006, Heft 2.
• Flemisch, Christiane A.: Wirtschaftsmediation im Zeitalter der Globalisierung – Besonderheiten bei interkulturellen Wirtschaftsmediationen, in IDR, 2006 Heft 1.
• Boulle, L (2005) Mediation: Principles Processes Practice, Australia, LexisNexis Butterworths.
• Folberg, J. & Taylor, A. (1984) Mediation: A comprehensive guide to resolving conflicts without litigation, San Francisco, Jossey-Bass Publishers.
• Sourdin, T. (2002) Alternative Dispute Resolution, Pyrmont NSW, Lawbook Co.
• Charlton, R. & Dewdney, M. 2004. The Mediator’s Handbook. Skills and Strategies for Practitioners. (2nd edition)

Ligare Pty Ltd, Riverwood NSW.

• Spencer, D. & Altobelli, T. 2005. Dispute Resolution in Australia. Cases, Commentary and Materials.

Ligare Pty Ltd, Riverwood NSW.

• Charlton, R. 2000. Dispute Resolution Guidebook. Star Printery Pty Ltd, Erskineville NSW.
• Spencer, D. & Altobelli, T. 2005. Dispute Resolution in Australia. Cases, Commentary and Materials. Ligare Pty Ltd, Riverwood NSW.
• Charlton, R. & Dewdney, M. 2004. The Mediator’s Handbook. Skills and Strategies for Practitioners. (2nd edition) Ligare Pty Ltd, Riverwood NSW.
• Spencer, D. & Altobelli, T. 2005. Dispute Resolution in Australia. Cases, Commentary and Materials. Ligare Pty Ltd, Riverwood NSW.

External links

• ACRNet.org - 'Frequently Asked Questions about Conflict Resolution', Association for Conflict Resolution
• CPR - The International Institute for Conflict Prevention and Resolution is a resource for lawyers seeking outstanding mediators (and arbitrators), the latest ADR case decisions and practice guidelines, CLE courses, publications and conferences, in the US and abroad. Focuses on business dispute resolution.
• CivilJusticeCouncil.gov.uk - 'The Civil Justice Council, Promoting Alternatives to Court Proceedings: ADR Answerbank' (UK)
• Institute for Collaborative Engagement - Theory-to-practice institute with focus on international and organizational mediation, is considered one of the top centers for innovative mediation applications
• Mediate.com - 'Mediate.com: The World's Dispute Resolution Channel'
• MIT-Harvard Public Disputes Program - conducts active research on a new way of thinking about and resolving disputes in the public sector, replacing “win-lose” outcomes with “all-gain” solutions to highly controversial and complex problems of public policy making. Alternative link.
• NVC Resolutions representatives of international Centre for Nonviolent Communication, which offers tools and resources to help people get to the heart of conflict issues through mediation.
• PeaceForge.org - Wiki dedicated to best practices in conflict resolution and peace building
• Peacemakers Trust- Peacemakers Trust has extensive bibliographic resources in the field of conflict resolution and peacebuilding.
• Parley Negotiation Software- A software to model, simulate and analyze conflicts based on the win-win approach.
• Indigenous land use agreements
• Australian Family Law Regulations 1984
• Medations Training LEADR
• NADRAC (2001) Framework for ADR Standards