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Watson Law Offices - Chartered - Attorney at Law & Certified Mediator

Certified Mediation

Mediation, a form of alternative dispute resolution (ADR), also refers to appropriate dispute resolution, and aims to assist two (or more) disputants in reaching an agreement. Whether an agreement results or not, and whatever the content of that agreement, if any, the parties themselves determine — rather than accepting something imposed by a third party. The disputes may involve states, organizations, communities, individuals or other representatives with a vested interest in the outcome.
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.
Disputants may use mediation in a variety of disputes, such as commercial, legal, diplomatic, workplace, community and family matters.

Philosophy of mediation

Mediation, in a broad sense, consists of a cognitive process of reconciling mutually interdependent, opposed terms as what one could loosely call "an interpretation" or "an understanding of". The German philosopher Hegel uses the term 'dialectical unity' to designate such thought-processes. This article discusses the legal communications usage of the term. Other Wikipedia articles, such as Critical Theory, treat other usages or "senses" of the term mediation, as for example cultural and biological.

 

Mediator education and training

Suitable education and training for mediators becomes a complex issue — largely due to the breadth of areas which may call on mediation as a means of dispute-resolution. Debate ensues on what constitutes adequate training on the principles of mediation as well as what personal attributes an individual needs in order to effectively fulfil a mediator’s role.
The educational requirements for accreditation as a mediator differ between accrediting groups and from country to country. In some cases legislation mandates these requirements; while in others professional bodies impose standards and applicants must comply prior to becoming accredited by them.
In Australia, for example, professionals wanting to practise in the area of family law must have tertiary qualifications in law or in social science, undertake 5 days training in mediation and engage in at least 10 hours of supervised mediation. Furthermore, they must also undertake 12 hours of mediation-education or training every 12 months.
Other institutions offer units in mediation across a number of disciplines such as law, social science, business and the humanities. In Australia not all fields of mediation-work require academic qualifications, as some deal more with the practical skills rather than with theoretical knowledge: to this end membership-organizations such as provide training-courses to further the adoption and practice of mediation. Internationally the organisation CEDR takes a similar approach to mediator training.
No legislated national or international standards on the level of education which should apply to all mediation practitioner’s organizations exist. However, organisations such as the National Alternative Dispute Resolution Advisory Council (NADRAC) in Australia continue to advocate for a wide scope on such issues. Other systems apply in other jurisdictions such as Germany, which advocates a higher level of educational qualification for practitioners of mediation.

Mediator codes of conduct

The application of a code of conduct to the practice of mediation becomes problematic — due in part to the diverse number and type of practitioners in the field. A tendency exists for professional societies to develop their own codes of conduct, which apply to their own members. Examples of this in Australia include the mediation codes of conduct developed by the Law Societies of South Australia and Western Australia and those developed by organisations such as Institute of Arbitrators & Mediators Australia (IAMA) and LEADR for use by their members. Other organizations such as the American Center for Conflict Resolution Institute ([www.accri.org]) have developed both classroom and distance learning courses which subscribe to its mission of promoting peace through education. The CPR/Georgetown Ethics Commission (www.cpradr.org), the Mediation Forum of the Union International des Avocats, and the European Commission have also promulgated codes of conduct for mediators.
Writers in the field of mediation normally espouse a code of conduct that mirrors the underlying principles of the mediation process. In this respect some of the most common aspects of a mediator codes of conduct include:

  • a commitment to inform participants as to the process of mediation.
  • the need to adopt a neutral stance towards all parties to the mediation, revealing any potential conflicts of interest.
  • the requirement for a mediator to conduct the mediation in an impartial manner
  • within the bounds of the legal framework under which the mediation is undertaken any information gained by the mediators should be treated as confidential.
  • mediators should be mindful of the psychological and physical wellbeing of all the mediations participants.
  • mediators should not offer legal advice, rather they should direct participants to appropriate sources for the provision of any advice they might need.
  • mediators should seek to maintain their skills by engaging in ongoing training in the mediation process.
  • mediators should practise only in those fields in which they have expertise gained by their own experience or training.

History of dispute mediation

The activity of mediation in itself appeared in very ancient times. Historians presume early cases in Phoenician commerce (but suppose its use in Babylon, too). The practice developed in Ancient Greece (which knew the non-marital mediator as a proxenetas), then in Roman civilization, (Roman law (starting from Justinian's Digest of 530 - 533 CE) recognized mediation. The Romans called mediators by a variety of names, including internuncius, medium, intercessor, philantropus, interpolator, conciliator, interlocutor, interpres, and finally mediator.
The Middle Ages regarded mediation differently, sometimes forbidding the practice or restricting its use to centralized authorities. Some cultures regarded the mediator as a sacred figure, worthy of particular respect; and the role partly overlapped with that of traditional wise men or chieftain.

Common aspects of mediation

Mediation as a process involves a third party (often an impartial third party) assisting two or more persons, ("parties" or "stakeholders") to find mutually-agreeable solutions to difficult problems.
People make use of mediation at many different levels and in multiple contexts: from minor disputes to global peace-talks. This makes it difficult to provide a general description without referring to practices in specific jurisdictions — where "mediation" may in fact have a formal definition and in some venues may require specific licenses. This article attempts only a broad introduction, referring to more specific processes (such as peace process, binding arbitration, or mindful mediation) directly in the text.
While some people loosely use the term "mediation" to mean any instance in which a third party helps people find agreement, professional mediators generally believe it essential that mediators have thorough training, competency, and continuing education. The term "mediation" also sometimes occurs incorrectly referring to arbitration; a mediator does not impose a solution on the parties, whereas an arbitrator does.
While mediation implies bringing disputing parties face-to-face with each other, the strategy of "shuttle diplomacy", where the mediator serves as a liaison between disputing parties, also sometimes occurs when face-to-face mediations are not possible.
Some of the types of disputes or decision-making that often go to mediation include the following:
Family:

  • Prenuptial/Premarital agreements
  • Financial or budget disagreements
  • Separation
  • Divorce
  • Financial distribution and spousal support (alimony)
  • Parenting plans (child custody and visitation)
  • Eldercare issues
  • Family businesses
  • Adult sibling conflicts
  • Disputes between parents and adult children
  • Estate disputes
  • Medical ethics and end-of-life issues

Workplace:

Public disputes:

  • Environmental
  • Land-use

Disputes involving the following issues:

Other:

Mediation commonly includes the following aspects or stages:

  • a controversy, dispute or difference of positions between people, or a need for decision-making or problem-solving;
  • decision-making remaining with the parties rather than imposed by a third party;
  • the willingness of the parties to negotiate a "positive" solution to their problem, and to accept a discussion about respective interests and objectives;
  • the intent to achieve a "positive" result through the facilitative help of an independent, neutral third person.

In the United States, mediator codes-of-conduct emphasize "client-directed" solutions rather than those imposed by a mediator in any way. This has become a common, definitive feature of mediation in the US and in the UK.
Mediation differs from most other adversarial resolution processes by virtue of its simplicity, informality, flexibility, and economy.
The typical mediation has no formal compulsory elements, although some common elements usually occur:

  • each of the parties allowed to explain and detail their story;
  • the identification of issues (usually facilitated by the mediator);
  • the clarification and detailed specification of respective interests and objectives;
  • the conversion of respective subjective evaluations into more objective values;
  • identification of options;
  • discussion and analysis of the possible effects of various solutions;
  • the adjustment and the refining of the proposed solutions;
  • the memorialization of agreements into a written draft

Due to the particular character of this activity, each mediator uses a method of his or her own (the law does not ordinarily govern a mediator's methods), that might eventually be very different from the above scheme. Also, many matters do not legally require a particular form for the final agreement, while others expressly require a precisely determined form.
Most countries respect a mediator's confidentiality.

Competence of the mediator

Numerous schools of thought exist on identifying the "competence" of a mediator. Where parties retain mediators to provide an evaluation of the relative strengths and weaknesses of the parties' positions, subject-matter expertise of the issues in dispute becomes a primary aspect in determining competence.
Some would argue, however, that an individual who gives an opinion about the merits or value of a case does not practise "true" mediation, and that to do so fatally compromises the alleged mediator's neutrality.
Where parties expect mediators to be process experts only (i.e., employed to use their skills to work through the mediation process without offering evaluations as to the parties' claims) competence is usually demonstrated by the ability to remain neutral and to move parties though various impasse points in a dispute. International professional organizations continue to debate what competency means.

Post-mediation activities

Ratification and review

Some mediated agreements require ratification by an external body to which a negotiating party must account — such as a board, council or cabinet. In other situations it may be decided or understood that agreements will be reviewed by lawyers, accountants or other professional advisers after the mediation meeting. Ratification and review provide safeguards for mediating parties. They also provide an opportunity for persons not privy to the dynamics of a mediation and the efforts of the negotiating parties to undermine significant decisions they have made.
In the United States, the implementation of agreements reached in mediation requires tailoring to the mediated subject. For example, successful family and divorce mediations must memorialize an agreement which complies with the statutes of the state in which the parties will implement their mediated agreement. In New York, for example, the New York Domestic Relations Law specifies both technical and substantive requirements with which pre-marital (or pre-nuptial) and post-marital (or post-nuptial) agreements must comply (NY Domestic Relations Law, Sec. 236, Part B).

Official sanctions

In some situations the sanctions of a court or other external authority is required to validate a mediation agreement. Thus if a grandparent or other non-parent is granted residence rights in a family dispute, a court counselor will be required to furnish a report to the court on merits of the proposed agreement. parties to a private mediation may also wish to obtain court sanction for their decisions. Under the Queensland regulatory scheme on court connected mediation, mediators are required to file with a registrar a certificate about the mediation in a form prescribed in the regulations. A party may subsequently apply to a relevant court an order giving effect to the agreement reached. Where court sanction is not obtained, mediated settlements have the same status as any other agreements.

Referrals and reporting-obligations

Mediators may at their discretion refer one or more parties to psychologists, accountants or social workers for post-mediation professional assistance. Where mediation is provided by a public agency, referrals are made to other authorities such as Centrelink.

Mediator debriefing

In some situations, a post-mediation debriefing and feedback session is conducted between co-mediators or between mediators and supervisors. It involves a reflective analysis and evaluation of the process. In many community mediation services debriefing is compulsory and mediators are paid for the debriefing session.

Mediator roles and functions

Mediator functions are classified into a few general categories, each of which necessitates a range of specific interventions and techniques in carrying out a general function;

Creating favorable conditions for the parties' decision-making

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

  • Providing an appropriate physical environment- this is through selection of neutral venues, appropriate seating arrangements, visual aids and security.
  • 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.
  • 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.

Assisting the parties to communicate

People in conflict tend not to communicate effectively and poor communication can cause disputes to occur or escalate. For mediators to encourage communication efficiently, they themselves must be good communicators and practice good speaking and listening skills, pay attention to non-verbal messages and other signals emanating from the context of the mediation.

Facilitating the parties' negotiations

Mediators can contribute expertise and experience in all models and styles of negotiation so that the parties are able to negotiate more constructively, efficiently and productively. This function is prominent after the problem-defining stages of mediation and involves mediators bringing direction and finesse to the negotiation efforts of the parties. Mediators can also act as catalysts for creative problem solving, for example by brainstorming or referring to settlement options generated in analogous mediation experiences.

Functions of the parties

The functions of the parties will vary according to their motivations and skills, the role of legal advisers, the model of mediation, the style of mediator and the culture in which the mediation takes place. Legal requirements may also affect their roles. In New South Wales the Law Society has published A guide to the rights and Responsibilities of participants.

Preparation

Whether parties enter mediation of their own volition or because legislation obligates them to do so, they prepare for mediation in much the same way they would for negotiations, save that the mediator may supervise and facilitate their preparation. Mediators may require parties to provide position statements, valuation reports and risk assessment analysis. The parties may also be required to consent to an agreement to mediate before preparatory activities commence.

Disclosure of information

Agreements to mediate, mediation rules, and court-based referral orders may have requirements for the disclosure of information by the parties and mediators may have express or implied powers to direct them to produce documents, reports and other material. In court referred mediations parties usually exchange with each other all material which would be available through discovery or disclosure rules were the matter to proceed to hearing. This would include witness statements, valuations and statement accounts.

Party participation

The objectives of mediation, and its emphasis on consensual outcomes, imply a direct input from the parties themselves. There will be an expectation that parties attend and participate in the mediation meeting and some mediation rules require a party, if a natural person, to attend in person. However party participation is assessed in overall terms so failure to participate in the initial stages may be redeemed later in the process.

Choice of mediator

The choice of mediation as a dispute resolution option is closely linked to the identity of a mediator who conducts it. This follows from the fact that there are different models of mediation, there are many mediator discretions in a flexible procedure, and the mediator's professional background and personal style have enormous potential impacts on the nature of the service provided. These factors make the selection of mediators of real practical significance.
The term "choice of mediator" implies a process of deliberation and decision-making. No formal mechanism for objecting to the appointment of particular mediators exists, but in practice the parties could ask mediators to withdraw for reasons of conflict of interest. In community mediation programs the director generally assigns mediators without party involvement. In New South Wales, for example, when the parties cannot agree on the identity of a mediator the registrar contacts a nominating entity, such as the Bar Association which supplies the name of a qualified and experienced mediator. The following are useful ways of selecting a mediator:

  • Personal Attributes - qualities and characteristics which are innate, as opposed to skills and techniques which can be learned and developed. In this concept a number of desirable attributes for mediators include interpersonal skills, patience, empathy, intelligence, optimism and flexibility.
  • Mediation qualifications, experience and background - while some jurisdictions prescribe no generalized qualifications for mediators, in some specific contexts mediators require qualifications prescribed by legislation. In New South Wales, for example, the Family Law Act 1975 (Cth) proscribes qualifications for mediators. Qualifications usually revolve around knowledge of the theory and practice of conflict, negotiation and mediation, mediations skills, and attitudes appropriate for mediation. There are three factors of relevance: experience in practice of mediation, experience in the substantive area of dispute, and personal life experience.
  • the mediator's training
  • the mediator's professional background
  • the mediator's certification and its value
  • the mediation model offered, and whether it suits the case
  • any conflict of interest the mediator may have
  • the mediator's willingness to allow, and possibly encourage, mediation participants to seek creative solutions
  • the mediator's fee

Values of mediation

Mediation contains three aspects, feature, values and objectives. The three aspects, although different, can and do at times overlap in their meaning and use. There are a number of values of mediation including Non Adversarialism, Responsiveness and Self Determination and Party Autonomy.
Each Person, Mediator and Process has values that can be attributed to them. These values are as diverse as Human Nature itself and as such provides for no uniformity amongst the values and on how those values are enforced by each party.
The Non-adversarialism value of mediation is not based on the attitudes of the parties involved, but is based on the actual process of mediation and how it is carried out. To clarify the context of the meaning it is said that Litigation is adversarial as its process must come to a logical conclusion based on a decision made by a presiding judge. Mediation does not always end with a decision.
Responsiveness, another value of mediation, responds to the interests of the parties without the restrictions of the law. It allows the parties to come to their own decisions on what is best for them at the time. Responsiveness shows how the mediation process is informal, flexible and collaborative and is person centered.
Self-determination and party autonomy gives rise to parties being able to make their own choices on what they will agree on. It gives the parties the ability to negotiate with each other to satisfy their interests, generate some options which could lead to an outcome satisfactory to both parties. This autonomy or independent structure provided by the mediation process removes the need for the presence of professional bodies and turns the responsibility back on to the parties to deal with the issue and hopefully to a satisfactory conclusion.

Mediation with arbitration

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, the mediator becomes an arbitrator, 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.
This process is more appropriate in civil matters where rules of evidence or jurisdiction are not in dispute. It resembles, in some respects, criminal plea-bargaining and Confucian judicial procedure, wherein the judge also plays the role of prosecutor - rendering what, in Western European court procedures, would be considered an arbitral (even 'arbitrary') 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 a mediation are aware the mediator might later need to act in the role of judge, the process could be dramatically distorted. Thankfully, mediation-arbitration often involves using different individuals in the role of mediator and (if needed later) arbitrator, but this is not always the case.

Mediator liability

Mediators should take necessary precautions to protect themselves, as they are putting themselves in a vulnerable position in terms of liability. Mediators need to be qualified and properly trained before they can mediate a legally binding mediation. In mediation, there are a number of situations in which liability could arise. For example, a mediator could be liable for misleading parties about the process and/or process of alternative dispute resolution. If a mediator deems mediation as the correct dispute resolution, when in actual fact the dispute is not suitable, the mediator can be held liable. A breach of confidentiality on the mediators behalf could result in liability. These situations can all lead to court proceedings, although this is quite uncommon. Only one case has been recorded in Australia so far.
Three areas exist in which liability can arise for the mediator:

  1. Liability in Contract
  2. Liability in Tort
  3. Liability for Breach of Fiduciary Obligations.

Liability in Contract arises if the Mediator breaches contract between themselves and one or both of the parties. This can be in written or verbal contract. There are two forms of breach - failure to perform and anticipatory breach. The latter is harder to prove because the breach has not yet happened. If the breach is proven in can result in damages awarded. The damages awarded are generally compensatory in nature, very rarely pecuniary. Limitations on liability include causation (Proving liability requires a showing of actual causation).
Liability in Tort arises if a mediator influences a party in any way (compromising the integrity of the decision), defames a party, breaches confidentiality, or most commonly, is liable in negligence. To be awarded damages, the party must show suffering of actual damage, and must show that the mediator's actions (and not the party's actions) are the actual cause of the damage.
Liability for Breach of Fiduciary Obligations can occur if parties misconceive their relationship with the Mediator for something other than completely neutral. The mediator has the role of remaining neutral at all times, but the parties could misinterpret the relationship to be a fiduciary one.

 

This article is licensed under the GNU Free Documentation License. It uses material from the Wikipedia article "Mediation "