MEDIATION: MEANING AND PRINCIPLES

MEDIATION

MEANING AND PRINCIPLES

Mediation as a form of Alternative Dispute Resolution (ADR) aims to determine the conditions of any settlements reached rather than accepting something imposed by a third party. Thus, Mediation aims at working with the users in conflict to incorporate the information or viewpoints of both, while ensuring that the result conforms to all applicable policies. At the same time, it endeavours to produce sufficient peace between the parties to allow amicable discussion and prevent the need for future dispute resolution.

Mediation is also an activity in which a neutral third party, the mediator, guides and regulates structured discussion to facilitate reaching consensus on a disputed issue.

Mediation is intended to achieve a way for people to keep working happily together and build better articles, while growing from the mutual exchange. It is also an arrangement for parties who, although genuinely interested in resolving their disputes, cannot find common agreement.

Mediation could also be referred to as an informal process, aimed at enabling the parties to a dispute to discuss their differences in total privacy, with the assistance of a neutral third party (the mediator), whose task it is first to help each party to understand the other party’s view of the matters in dispute and then to help both parties to make a dispassionate objective appraisal of the total situation.

As part of the process, the mediator will talk confidentially with each party. The object of the process is to help the parties to negotiate a settlement. The discussions are wholly without prejudice; that is, nothing that is said by either party can be used or referred to in any proceedings in a Court. The mediator arranges and chairs the discussions and acts as an intermediary to facilitate the progress towards settlement.

MEDIATORS

A mediator is a person who works with both sides in a dispute in an attempt to reach an agreement. 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.

ROLES AND FUNCTIONS OF MEDIATORS

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

1.      Providing an appropriate physical environment – This is through selection of neutral venues, appropriate seating arrangements, visual aids and security.

2.      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.

3.      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.

CHARACTERISTICS OF MEDIATION

The principal characteristics of mediation are –

1.      Mediation is a non-binding procedure controlled by the parties – A party to mediation cannot be forced to accept an outcome that it does not like. Unlike an arbitrator or a judge, the mediator is not a decision-maker. The mediator's role is, rather, to assist the parties in reaching a settlement of the dispute. Indeed, even when the parties have agreed to submit a dispute to mediation, they are free to abandon the process at any time after the first meeting if they find that its continuation does not meet their interests. However, parties usually participate actively in mediations once they begin. If they decide to proceed with the mediation, the parties decide on how it should be conducted with the mediator.

2. Mediation is a confidential procedure – In mediation, the parties cannot be compelled to disclose information that they prefer to keep confidential. If, in order to promote resolution of the dispute, a party chooses to disclose confidential information or make admissions, that information cannot be provided to anyone - including in subsequent court litigation or arbitration - outside the context of the mediation. Mediation's confidentiality allows the parties to negotiate more freely and productively, without fear of publicity.
3. Mediation is an interest-based procedure – In court litigation or arbitration, the outcome of a case is determined by the facts of the dispute and the applicable law. In mediation, the parties can also be guided by their business interests. As such, the parties are free to choose an outcome that is oriented as much to the future of their business relationship as to their past conduct. When the parties refer to their interests and engage in dialogue, mediation often results in a settlement that creates more value than would have been created if the underlying dispute had not occurred.

Because mediation is non-binding and confidential, it involves minimal risk for the parties and generates significant benefits. Indeed, one could say that, even when a settlement is not achieved, mediation never fails, as it causes the parties to define the facts and issues of the dispute, thus in any event preparing the ground for subsequent arbitration or court proceedings.

DISTINGUISHING MEDIATION FROM OTHER FORMS OF DISPUTE SETTLEMENT

MEDIATION AND ARBITRATION

The role of a mediator is unlike the role of an arbitrator; mediators are facilitators of voluntary discussion, while arbitrators hear evidence and issue binding rulings, including the ability to issue sanctions against users

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, they can shift to an arbitrator, which entails 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.

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 mediation are aware the mediator might later need to act in the role of judge, the process could be dramatically distorted. However, mediation-arbitration often involves using different individuals in the role of mediator and – if needed later – arbitrator, but this is not always the case.

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.

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.

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, unlike litigation does not create binding agreements unless the parties consent to it, and the Mediator has no say in the outcome.

MEDIATION AND CONCILIATION

"Conciliation" sometimes serves as an umbrella-term that covers all mediation and facilitative and advisory dispute-resolution processes. Neither mediation nor conciliation process 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. On the other hand, mediation works purely facilitative: 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.

Several different styles of mediation exist: evaluative, facilitative, and transformative. Evaluative mediation has somewhat of an advisory role in that its practitioners evaluate the strengths and weaknesses of each side's argument should they go to court; whereas facilitative mediators and transformative mediators do not do this.

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 legal argument.

HOW DOES MEDIATION WORK

This has to do with the steps in mediation (mediation process). There are six (6) steps to a formal mediation –

1.      Introductory remarks;

2.      Statement of the problem by the parties;

3.      Information gathering time;

4.      Identification of the problems;

5.      Bargaining and generating options; and

6.      Reaching an agreement.

INTRODUCTORY REMARKS

The mediator will wait until both parties are present and then make introductions. The physical setting will be controlled so that no party feels threatened. Most mediators will ask that if children are present, they wait outside. The mediator will then give an opening statement. This outlines the role of the participants and demonstrates the mediator’s neutrality. Some mediators will make comments about what they see as the issue and confirm the case data if briefs have been pre-submitted. Next, the mediator will define protocol and set the time frame for the process. There will be a review of the mediation guidelines and the mediator will briefly recap what it is that he has heard as the issues.

The opening statement during the introductory remarks will set out the ground rules for the mediation. These ground rules are what help the mediation move along smoothly. Parties should not interrupt each other; the mediator will give each party the opportunity to fully share their side of the story.

STATEMENT OF THE PROBLEM BY THE PARTIES

After the opening statement, the mediator will give each side the opportunity to tell their story uninterrupted. Most often, the person who requested the mediation session will go first. The statement is not necessarily a recital of the facts, but it is to give the parties an opportunity to frame issues in their own mind, and to give the mediator more information on the emotional state of each party. If there are lawyers present who make the initial statement, the mediator will then ask the client to also make a statement. The rationale behind the statement of the problem is not necessarily a search for the truth; it is just a way to help solve the problem.

INFORMATION GATHERING

The mediator will ask the parties open-ended questions to get to the emotional undercurrents. The mediator may repeat back key ideas to the parties, and will summarize often. This helps the mediator build rapport between the parties, especially when a facilitative style is used.

PROBLEM IDENTIFICATION

This might also be part of other segments. The mediator tries to find common goals between the parties. The mediator will figure out which issues are going to be able to settle or those that will settle first.

BARGAINING AND GENERATING OPTIONS / REACHING AN AGREEMENT

Methods for developing options may include group processes, discussion groups or sub-groups, developing hypothetical plausible scenarios, or a mediator’s proposal where the mediator puts a proposal on the table and the parties take turns modifying it. However, the most commonly used method is the caucus (a method used between people to promote a particular policy or interests).

Once the participants are committed to achieving a negotiated settlement, the mediator will propose a brainstorming session to explore potential solutions. This can lead to a final agreement, which diffuses the conflict and provides a new basis for future relations.

The mediator may decide to hold private sessions with both parties in order to move the negotiations along. This caucus session will be confidential. The caucus provides a safe environment in which to brainstorm and surface underlying fears. The goal of the session is to find some common ground by exploring lots of options, and to bring about possible solutions for the parties to think about. Parties can also entertain alternative solutions to their problems without committing themselves to offer the solutions as concessions.

KEY QUALITIES OF THE MEDIATION PROCESS

1.      Voluntary – A party can leave at any time for any reason, or no reason.

2.      Collaborative – As no participant in mediation can impose anything on anyone, everyone is motivated to work together to solve the issues and reach best agreements.

3.      Controlled - Each participant has complete decision-making power and a veto over each and every provision of any mediated agreement. Nothing can be imposed on a party.

4.      Confidential – Mediation is generally confidential, as you desire and agree, be that by statute, contract, and rules of evidence and/or privilege. Mediation discussions and all materials developed for mediation are generally not admissible in any subsequent court or other contested proceeding, except for a finalized and signed mediated agreement. A mediator is obligated to describe the extent of mediation confidentiality and exceptions to that confidentiality. The extent of confidentiality for any "caucus meetings" (meetings between the mediator and individual parties) should also be defined.

5.      Informed – The mediation process offers a full opportunity to obtain and incorporate legal and other expert information and advice. Individual or mutually acceptable experts can be retained. Expert advice is never determinative in mediation. The participants always retain decision-making power. Mediators are bound to encourage parties to obtain legal counsel and to advise them to have any mediated agreement involving legal issues reviewed by independent legal counsel prior to signing. Whether legal advice is sought, is ultimately, a decision of each mediation participant.

6.      Impartial, Neutral, Balanced and Safe – The mediator has an equal and balanced responsibility to assist each mediating party and cannot favour the interests of any one party over another, nor should the mediator favour a particular result in the mediation. A mediator is ethically obligated to acknowledge any substantive bias on issues in discussion. The mediator's role is to ensure that parties reach agreements in a voluntarily and informed manner, and not as a result of coercion or intimidation.

7.      Self-Responsible and Satisfying – Based upon having actively participated in voluntarily resolving issues, participant satisfaction and the likelihood of compliance are found to be elevated through mediation compared to court options.

ETHICAL STANDARDS REQUIRED OF MEDIATORS

1.      Knowledge – sufficient proficiency on the subject matter of dispute.

2.      Honourable – fairness, candour and decorum; to earn respect and confidence of the parties.

3.      Good listener and high analytical skills.

4.      Impartial facilitator – moves the parties towards amicable resolution of the dispute.

5.      Facilitates resolution of the dispute timely.

6.      Ensures confidentiality.

7.      Do not propose or impose decision on the parties but adopt techniques to help the parties arrive at their mutually agreeable solutions.

8.      Ensures resolution by parties is reduced into writing with all terms and points clearly spelt out.

9.      Displays leadership skills and control the proceedings.

10.  A mediator is not bound to take notes because he is not expected to decide for the parties the outcome of the mediation.

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