The purpose of this post is to answer the question, “What is a mediator?” A mediator is a trusted, neutral person who facilitates a process designed to empower parties to recognize find their own, satisfactory solutions to intractable conflict. Each word in the sentence above has important meaning.
A conflict is any issue that is causing distress. Two children who each want the same cupcake have a conflict. Two countries with a boundary dispute may also call in a mediator to help them resolve their differences. Mediators assist with conflict in every type of human endeavor, ranging from the simple and minor (cupcake) to the complex and major (nuclear disarmament).
Not all conflict causes distress. Suppose one person likes a certain type of music and the other hates it. However, the people never listen to music together. Although these people may disagree, it doesn’t bother them.
The only time conflict must be addressed is when it causes a problem. There is one thing to note here, though. Conflict that causes a problem for just one side, still causes a problem. Imagine the cupcake scenario. Suppose one child has the entire cupcake while the other has none. Those children have a conflict that is causing problems, even though the one child holding the cupcake would prefer to deny that a problem exists.
A primary goal of mediation is to assist the parties in coming up with a solution that works well for them. Unlike law or arbitration, in which an outsider imposes a solution that may or may not fit the circumstances and needs exactly, mediation enables the parties to come up with their own, custom-tailored solution. What works in one dispute for one set of disputants may be very different from what works in same type of dispute but with different set of disputants. In other words, the solutions may be a creative and individual as the disputants themselves.
Additionally, the mediator may at times ask participants to delve into questions that are designed to help parties gain insight into their conflict. While insight may be a fortunate side effect of mediation, the goal is to gain insight into a particular conflict, not to engage in therapy. Insight into causes of conflict may help parties ascertain ways to resolve it. Thus, mediation is forward focused and solution focused.
Mediation is always voluntary. If a process or solution is not voluntary, then it is not true mediation. This does not mean that all solutions are easy or fun, however. Choices in life are real, resources are not unlimited, and mediation also involves a good faith effort to listen to and accommodate the needs, interests, and values of all parties. The child who had the whole cupcake may have preferred not to share. However, if that child understands the needs of his sister and is committed to being fair, he may voluntarily give her half even though he might have preferred not to.
The significance of this word is that it emphasizes that parties to mediation remain in control of their own solutions. Suppose in the cupcake example, one child only cared about the icing and the other child only cared about the cake. Until now, perhaps we have been thinking of cutting the cupcake in two halves. But each child could get exactly what they want if one were to get all the icing, and the other were to get all the cake. A judge or arbitrator may not have thought of this. Mediation encourages parties to look at underlying needs and interests and then creatively to come up with their own set of solutions that are as unique and individual as the dispute in front of them.
It is also very disempowering for parties to put the processes for making decisions concerning their lives into the hands of third parties. This is exactly what happens when people file lawsuits against one another. Suddenly, the lawyers are the experts telling the parties what to do and phrasing arguments designed to persuade a stranger, the judge, to rule in favor of one party or the other. In contrast to the legal process, which puts all the power to decide the dispute into the hands of the lawyers and judges, mediation seeks to keep parties empowered and in control over the outcome of their own case.
This term emphasizes that mediation is a process of co-creation. Before entering into mediation, neither the parties nor the mediator know ahead of time what the solution will be. Parties will be encouraged to explore underlying needs and interests and to consider all options, including options that could not be considered in a more traditional dispute resolution process.
For mediation to be successful, all stakeholders ideally will be included in the process of finding the solution. This is important for purposes of both exploring all options and getting buy-in from each essential party. Suppose, for example, there are three children who want part of the cupcake. If only two children are involved in the mediation, it’s likely that the solution they come up with would not reflect the needs and interests of the third child. Ideally, all three children should participate in the mediation. Moreover, if the third child is not included in the decision process, that child may not feel bound by the decision made in mediation.
In a complex, multiparty mediation, it is not uncommon for one party to refuse to mediate. The consequences of this refusal depend on the situation. If there are ten shareholders in a family-owned corporation and just one of the ten refuses to mediate, it is still possible for the other nine shareholders to reach an agreement that the non-participating tenth shareholder would be bound by. In such a case, the tenth shareholder is likely to realize it is in their best interest to come to the mediation table and participate, in order for their needs and wishes considered in the decision process. Ideally, the recalcitrant participant will find the mediation process itself to be affirming and healing. Sometimes, a participation that was begrudging initially will become enthusiastic and voluntary as the mediation process proceeds.
A primary goal of mediation is to enlighten and empower. The mediator will seek to assist parties in understanding their own conflict better and understand their options better, and then to empower the parties to achieve the solutions that are in their best interest.
There are many different styles of mediation, but all involve a deliberate process that is specifically designed to meet the needs of parties within a particular context. All styles of mediation involve communication that is “mediated” by going through the neutral third party called a mediator. The style of mediation depends on the needs of the parties and also the training and professional discretion of the mediator.
In Western cultures, the most common style of mediation is called “facilitative mediation.” In facilitative mediation, the mediator will utilize a specific meeting format designed to help parties explore issues and reach a solution. A different style of mediation, called “evaluative mediation,” is more likely to be used by parties who are embedded in the legal mindset of attempting to approximate what a court would order. In “evaluative mediation,” used extensively in settlement of lawsuits, the mediator will help parties understand the benefits and drawbacks of their case in order to understand the settlement value of their case better and, hopefully, achieve a settlement without the expense of a court hearing. On the opposite extreme, a style of mediation called “transformative mediation” is not focused at all on settlement of a case, but rather on helping the parties gain enlightenment and empowerment to understand and react to their conflict better, without regard to any particular outcome.
Additional schools or models of mediation include “narrative mediation” and mediation based on principles of “nonviolent communication.” In non-Western cultures, other types of mediation may be employed, using intermediaries rather than face to face negotiation. While the styles and goals of various types of mediation are different, the common thread is that they all follow a deliberate process that is designed to empower parties to address their own conflict, without having a solution imposed by an outside party.
In mediation, the mediator always remains firmly in control of the process. If parties could have resolved their dispute amicably themselves, they would have done so. The mediator brings special skill and procedures to help bring understanding and agreement.
11. Neutral person
The mediator always remains neutral. If any party feels the mediator is not neutral, this should be discussed.
The mediator must be a trusted and respected by all parties to the mediation. If the parties do not trust the mediator, the mediator cannot be effective.
(Photos courtesy CEJISS, NewtonB920, Jacob Botter, J Morris, Creative Commons, via Wikimedia commons)
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Very useful analysis of the practice of med arb. As John Gregory mentioned, it is not at all new. Traditional communities in West Africa and in Aboriginal communities in Australia have used it for centuries in dispute settlement. The parties are told beforehand the advantages of mediating and know very well that in case there is no common agreement, the kingsman or chief will arbitrate.