Webster defines mediation as “intervention between conflicting parties to promote reconciliation, settlement or compromise.” The word mediate comes from the Latin mediātus which literally means to “be in the middle” or to intercede. Essentially, mediation is an informal forum for communication which employs a neutral party – that is, someone who is in an equal relationship to all the involved parties – to act as an intermediary. Mediation is also referred to as a form of ADR or Alternate Dispute Resolution. It is “alternate” in that it is an alternative to resolving the dispute in court.
Mediation is Communication
The key word in the above paragraph is communication. One common reason why mediation becomes necessary is that a breakdown in communication has occurred. Unlike some other methods of dispute resolution, such as litigation or dueling, mediation is designed primarily to facilitate communication between disputing parties. Without communication, there can be no resolution.
Some conflicts can result from simply having a difference of opinion, such as in the value of something. The parties may be communicating well, they just disagree. In a case like this, mediation is a tool to take their communication one step further, to achieve an acceptable agreement.
However, many conflicts involve a communication breakdown. While such a breakdown can result from a simple difference of opinion, breakdowns in communication often result from interference (aka “noise”). Interference, as with a radio signal, is anything that tends to garble what is being transmitted, preventing it from being received correctly. In a dispute, interference includes the emotions and attitudes that are being “transmitted” by one or both parties. The mediator, therefore, becomes the communication device, ensuring that the necessary information is conveyed between parties without interference.
Mediation is Education
The mediator is also an educator, making sure that the parties have the facts necessary to understanding the other side’s position, and that both sides understand any emotional or practical factors that could stand in the way of resolution. In an ideal situation the parties should leave the mediation not only having resolved the matter, but will also come away with greater knowledge about the situation and about each other. Notice that I said “ideal.” There are times when the best you can achieve is resolution of the issue at hand; however, a good mediator will always aim for the ideal result.
Mediation is Problem-Solving
At the heart of every dispute is at least one problem that requires resolving. While the final resolution is often in terms of money, money is usually not the problem. In the course of mediation we may find that there are actually several problems that require some resolution before the issue at hand can be resolved. Mediation, then, is also a problem-solving process, and one of the roles of the mediator is to facilitate the problem-solving process and offer creative solutions.
Mediation vs. Arbitration
Arbitration is an entirely different approach to conflict resolution than is mediation. An arbitration is quite similar to what is known as a “bench trial,” a trial in which the judge simply rules on the outcome. An arbitrator can be a judge or a retired judge, but also can be anyone whom the parties choose to look at the evidence and make a decision. Arbitrations can be binding, where the parties agree that the arbitrator’s ruling is final, or they can be non-binding, where the decision is only a suggestion that one or both parties can reject.
Mediation, on the other hand, moves the decision-making to the parties themselves. The mediator typically has no power to make any decisions whatsoever; he is there merely as the facilitator, as I’ve described. If there is a resolution, it is because it has been agreed to voluntarily by the involved parties.
Binding or Non-binding?
Because mediation is a voluntary process, any agreement reached by the parties is only as binding as they wish it to be. If one party fails to abide by the decision, the mediator does not have any authority to enforce the agreement. It is usually wise to write down the terms of the agreement and depending upon the situation, the parties may sign it to provide some documentation as to the agreement. If a mediation involves a matter which is already being litigated, as is often the case, the parties will usually arrange to have the settlement put “on the record” with the court as soon as possible; this, then, allows the court to enforce the agreement.
Generally if the parties arrive at a settlement on their own, they are more apt to follow through than if they feel that they were coerced into the agreement.
