Mediation

A voluntary dispute resolving process in which a neutral third party – the mediator – facilitates and coordinates the negotiations of disputing parties.  Mediation can be conducted in the court system, in community centres, police stations, in schools or in any setting where the disputants choose to use aneutral third party to help them settle their differences.

 Mediation is not simply sitting around and talking about a problem.  Mediation is an organized negotiation.  It is a structured process in which the mediator guides the disputants through a discussion of their mutual problems and concerns, organizes the parties’ presentations of alternatives for resolving the problem and aids the parties in arriving at a resolution of their dispute.

The mediator facilitates the process in numerous ways.  He controls the flow of information and encourages behaviour which makes it more likely that the parties will reach an effective compromise.  At the same time, the mediator discourages non-productive behaviour such as defensiveness, rambling, anger and reluctance to communicate.  The mediator attempts to ensure that the disputants “hear” each other by clarifying language, information and proposals.   

One key to successful mediation lies in the neutrality of the mediator.  He maintains his neutrality by not favouring either party or indicating that he approves of one party’s proposals relative to those of the other.  The mediator does not take sides in the dispute.  He merely facilitates the process of achieving a resolution.  Unlike a judge, the mediator does not have the authority to impose a decision upon the disputants.  The parties themselves decide whether and how to settle the dispute.

While the mediator’s goal is to have the parties themselves arrive at their mutually acceptable agreement, he is concerned with the result of the mediation process.  In particular, he is concerned with the workability of the agreement.  This involves a consideration of both the psychological and material resources of the disputants.  For example, the availability of financial resources may be relevant to the settlement of a monetary dispute.  In other cases, the psychological stability of the parties may determine whether they can comply with the terms of the settlement.  In any case, the mediator does evaluate the likelihood that the parties can, in fact, adhere to the compromise agreement reached.  If that likelihood is small, the mediator may wish to encourage an alternative plan that is more likely to be successful.

An effective mediator, on the other hand, does not attempt to substitute a compromise which suits his set of values for one reached by the disputants.  In general, a compromise reached by the parties is more likely to be successful than one imposed by the mediator.  The disputants know their situation better than the mediator does.  They have a better grasp of their own capabilities and a better understanding of what is likely to work for them.  People tend to resent being told what to do, and they are more likely to follow a course of action that they have suggested.

Mediation provides the parties with a unique opportunity to settle their dispute.  The parties can sit down in a controlled, and hopefully calm, setting and attempt to deal with the underlying issues that led to the dispute.  However, this calm, controlled environment does not happen by accident.  The stage must be properly laid to create a positive setting for the resolution of the dispute.

The mediator can enhance his ability to help the parties by following a simple seven stage mediation model.  This process is and should always remain flexible.  However, the seven stage model can provide direction, control and order for the parties so that they can examine and resolve the dispute.

Each of the seven stages of mediation is designed for a specific purpose, and they combine to provide a structured process that leads to crisis intervention and dispute resolution.

 

Extracted from The Mediator Handbook prepared by Roberta S. Mitchell and Scot E. Dewhirst of Capital University, Columbus, Ohio, USA.