According to the United Nations Guidance for Effective Mediation (2012, p.4), mediation is “a process whereby a third party assists two or more parties, with their consent, to prevent, manage or resolve a conflict by helping them to develop mutually acceptable agreements”. For the NY State Unified Court System (2008, no page), it is a “confidential dispute resolution process in which a neutral third party (the mediator) helps disputants identify issues, clarify perceptions and explore options for a mutually acceptable outcome“. More generally, mediation as “a process in which disputants attempt to resolve their differences with the assistance of an acceptable third party” (Kressel, 2006, p.726) is a practice that dates back to Ancient Greece and Rome (Ramsbotham et al., 2011), and although it has witnessed a number of cultural variations, essentially it can be applied, “[…] whether the conflict were between individuals or nations, and irrespective of culture, political ideology or religion. Although the circumstances of an international dispute [….] are very different from the emotional tangle of, for example, a marital one, both ultimately focus on human beings who have to make decisions and to act, and whose passions, fears, hopes, rage and guilt are much the same whoever they are” (Curle, 1986, no page).
In terms of the actual mediation process, some authors like Moore (1987) identified 12 stages, half of which focus on preparation and the other half on actual mediation. Others (Wall, 1981) have identified specific phases (organizing the process, establishing connections with the parties, agenda setting, understanding the relationship between the parties and their constituencies, argumentation and mediation, logistics and consequences of possible settlement, settlement agreement), but also strategies and methods to achieve resolution. Organizations at a community level, like the NYPI (2010), focus on the mediation process alone and identify the following stages: mediator’s opening statement, parties uninterrupted time, mediator summary of positions, mediator clarification questions, issue identification, agenda setting, generating options for resolution, evaluating options, building the agreement, closing of mediation. Rather than a specific process, what most Western institutions (NY State ADR Office, 2008; European Commission, 2004; United Nations, 2012) setting the standards of mediation practices at a national and international level agree on are the following general principles:
- Consent – Mediation is a voluntary process in which parties approve to participate, as opposed to court trials that oblige parties to attend.
- Impartiality/Inclusivity – A mediator should avoid any sort of favouritism or judgment towards one party and avoid any conduct that reveals partiality. Mediation should be a balanced process in which parties are treated fairly and whose perspectives are respectfully integrated.
- Confidentiality – The mediator is bound not to disclose any information s/he has become aware of during the mediation. Any exceptions to this rule should be made explicit to the parties.
- Self-determination – This is the key principle of Mediation and the one element that clearly distinguishes it from litigation. Parties have ownership of the process and the responsibility to find a mutually agreed solution. The role of the mediator is to foster dialogue and facilitate a voluntary resolution of a dispute, not to solve, suggest, or find solutions, and coerce parties into accepting anything they haven’t elaborated themselves. The mediator’s role is to facilitate the free exchange of ideas and never impose an agreement.
- Conflict of interest– The mediator should not have an interest in the outcome, not even in a peaceful solution. If the mediator believes there is a conflict of interest (knowing, favouring one party, etc), the mediator should recuse him/herself.
- Competence/Preparation –Training and experience are key in mediation. Typically, it takes a substantial training, practice and experience to gain accreditation and credibility.
- Safety – Mediation should take place in a physically safe place. The mediator should create an environment where parties can freely talk and can trust the integrity of the mediator and the process.
- Quality – This aspect refers to all of the above and in particular to the mediator’s ability to be aware of his/her own judgments and assumptions so not to negatively affect the process. The mediator shouldn’t offer opinions on issues of merit or specific subject matter, rather encourage the parties to equip themselves with all the expert support they believe they will need to solve the conflict. A mediator should conduct the mediation fairly, diligently, with sensitivity, civility and respect.
The article was written by Claudia Maffettone in May 2016.