Mediation is older than any legal system. The great Bacon wrote the praises of mediation nearly four hundred years ago, in one of his celebrated Essays:
“In general, it is better to treat by word than by letter, and by the mediation of a third party, than by a man himself…in all difficult negotiations, a man should not look to sow and harvest at the same time, but business must be prepared, and thus mature by degrees”. Francis Bacon (1561-1626)
Mediate means:
1. To achieve (an agreement, peace, etc.), as an intermediary between the parties for compromise, reconciliation, elimination of misunderstandings, etc.
2. To settle (disputes, strikes, etc.), as an intermediary between the parties: reconcile.
3. Effect (a result) or transmit (a message, gift, etc.), by or as an intermediary.
4. Act between the parties to effect an agreement, compromise or reconciliation.
5. Occupy an intermediate place or position.
6. Act through, rely on or involve an intermediary agency; not direct or immediate.”
Mediation means:
1. The action of mediating between the parties, such as to effect an agreement or reconciliation.
2. International law, an attempt to achieve a peaceful settlement between disputed nations through the friendly good offices of another power.”
Synonym(s):
1. Mediation, designate arbitration processes to reach an agreement for a reconciliation between opponents in a dispute. Mediation implies a deliberation that leads to solutions that may or may not be accepted by the contending parties: mediation resolved the strike. Arbitration implies a more formal deliberation, with the understanding that the results will be binding on the disputing parties: “the strike was resolved only after arbitration.”
(All definitions are reproduced from Webster’s Complete Encyclopedic Dictionary of the English Language)
Webster’s synonyms tend to confuse mediation with arbitration. Arbitration is designed to produce a result with a winner and a loser; it is not a process to “reach an agreement for a reconciliation”. Mediation, unlike arbitration, is not designed to produce winners and losers, but precisely a reconciliation of differences. Mediation tries to be win-win. Both are “alternative dispute resolution” mechanisms, but one bears little resemblance to the other.
Webster accurately establishes the role of the mediator as an intermediary between the parties in a dispute. Mediation is as old as civilization and predates anything resembling a legal process. The mediator is a go-between, busily going from one party to another in an attempt to help them reconcile their differences. In late classical Athens, Menander’s comedies often featured a cunning slave carrying messages, and in country house farces beloved by Victorian audiences, the chambermaid often served as the go-between for two mistresses. The Aztecs, who had no written language, used messengers or intermediaries to transmit exact messages of extraordinary length. Homing pigeons have been used to carry messages for hundreds of years and can navigate endless unknown miles, but so far no homing pigeon has become a mediator.
Although a mediator may lack some of the skills of a homing pigeon, he can and does carry messages, but that is the least of his duties. She is a trained professional who has the skills to overcome numerous obstacles, the perseverance to continue the process despite all the urges of the parties to end it, and who is able to finally bring them to closure on the particular dispute despite their differences, and sometimes achieve a full reconciliation. Such results are not easily achieved, and such skills are not easily learned.
Textbooks say that there are three ways to mediate, or three types of mediator. These are 1) evaluative 2) facilitator 3) transformative.
An evaluative mediator is one who is prepared to express an opinion about the likely outcome of a dispute. Parties seeking an evaluative mediator will often choose a retired judge. The prerequisite for giving an evaluation is subject matter expertise. Parties often rely on judges, who have decided hundreds or thousands of cases, or have watched hundreds of juries reach a verdict, to make an evaluation, which the parties may find helpful in reaching a decision on their case. private dispute. However, not only retired judges are used for evaluation purposes. People involved in a construction dispute will often turn to an engineer, general contractor, or other person with expertise in the matter.
A facilitative mediator is one who emphasizes that the function of his job is to allow or facilitate the parties to communicate and negotiate with each other, to reach their own evaluation and resolution. A facilitating mediator may consider it unethical to issue an opinion. The facilitative style may require more patience and skill in allowing the parties to work out their own resolution than may be necessary for an evaluative mediator. The parties may prefer an evaluative mediator when they wish to resolve their dispute and proceed their separate ways. Facilitative mediation may be most desirable when the parties want, or must, enter into an ongoing relationship with each other, such that the particular dispute is simply an obstacle that must be overcome to allow that ongoing relationship.
Many mediators are perfectly willing to be evaluators or facilitators, as the situation demands.
The third type of mediator is called “transformative,” and the goal of transformative mediation is much bolder and more therapy-like than the goal of traditional, evaluative, or facilitative mediation. “Transformation” suggests that the goal is to affect a transformation, in the parts themselves and in their relationship. Transformation means (1) act or process of transformation; state of being transformed. (2) Change of form, appearance, nature, or character. (3) Theatrical, an apparently miraculous change in the appearance of the stage or actors in public view.
In “Mediating Dangerously” (2001), Kenneth Cloke, a pioneer of transformational mediations, writes:
“The transformational or provocative model of mediation…views conflict as something that can be learned from, and the parties are ready for introspection and fundamental change. The mediator becomes an empathic but honest agent, whose role is to get recognition and empower parties to solve their own problems… Personally I use a modified version of the transformational model, based on a more intuitive, integrative and dangerous approach to mediation. that I interact with the parts and reflect on possibilities, based on intuitive assessments at the time”.
The role of a mediator is to enable change. A mediator is a catalyst whose presence and abilities enable change. The exchange rate enabled in this way is the most difficult of all: the change of mentality.
Change is necessary for movement to occur. Movement is needed for the contestants to get closer to each other. The contestants must get closer to each other for the negotiation to take place. Negotiation must occur for solutions to be explored. Solutions must be explored so that the parties in dispute achieve a resolution that satisfies the conflicting interests.
On some level, the disputing parties appreciate their dispute and the accompanying emotions and attitudes: they want to drop the charge but are reluctant to do so. They want the satisfaction that comes with winning. They don’t just want to win; they want the other side to lose, and preferably to be clearly seen to lose.
When an outsider hears both sides of a conflict, they may get the impression that the contenders are in an illusion, the competing illusions colliding in the conflict. One or both “have been wrong.” If both parties are led to share more or less the same reality or vision of the case, they reach an agreement. This is known by many colloquial expressions, such as “enter the same ballpark”, “enter the same zip code”, etc. The mediator’s presence and skills tip the balance in favor of reality, rationality, and closure.
The three fundamental principles by which mediation is carried out are (1) confidentiality (2) voluntary participation and (3) control of the results by the parties.