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Mediation

Mediation is the activity in which a neutral third party, the mediator, assists two or more parties in order to help them achieve an agreement, with concrete effects, on a matter of common interest; lato sensu is any activity in which an agreement on whatever matter is researched by an impartial third party, usually a professional, in the common interest of the parties.

Mediation applies to different fields, with some common peculiar elements and some differences for each of its specialties. The main fields of application of mediation are business commerce, legal dispute and diplomacy, but minor forms can be found in other fields too. The mediation in marriages is technically admitted in the category, even if it follows an own history since the times of ancient Greeks.

The activity in itself is indeed very ancient, presumably started with Phoenician commerce (but it has been supposed it was in use in Babylon too), and developed in Greece (where the mediator is called proxenetas - not in the sense of marriage mediator), then in Roman civilisation, where mediation is recognised in roman law starting form Justinian's Digesto. In Rome the mediator was called with a variety of names, among which internuncius, medium, intercessor, philantropus, interpolator, conciliator, interlocutor, interpres, and finally mediator. During the Middle Ages, mediation has been differently considered, sometimes forbidden, or its practice has been restricted to centralised authorities. In some cultures it was instead a sacred figure, tributed a particular respect, partly coincident with that of traditional wise men.

Table of contents

Common aspects of Mediation

The common aspects of mediation, that seem to apply to all the fields of application, could be concisely summarised in the presence of these basic factors:

  • a controversy, a dispute or generically a contraposition, a difference of positions between (or among) the respective parties (in business or in commerce this is the ordinary position of the parties who intend achieving an agreement);
  • the free and not conditioned will of the parties to find a positive solution to their problem and to accept a discussion about respective interests and objectives;
  • the intention of achieving a positive result through the constructive help of a third person, usually independent, neutral and in no connection at all with any of the involved parties (as opposite to the intention of achieving respective goals in a conflictual way);
  • the intention of achieving a steady result, preferably a per se long lasting agreement.

The acceptance of a mediation does not necessarily include for the parties the obligation to conclude the agreements that the mediator will propose, even if this would perhaps seem natural at a first sight. When in presence of a similar clause, in fact, it is discussed whether the activity would still be considered a mediation or an arbitration, and effectively mediators usually refuse the contemporary double representation of the parties, because the eventual mediator's solution would have less practical strength and less probability to last in time, not being a fully personal determination of the parties. The ordinary form of a mediated agreement actually contains therefore the free and self-determined consensus of the parties on a proposal of agreement that has been developed by the mediator (exceptions are possible in minor matters).

Mediation differs from most other contraposition resolution processes by virtue of its simplicity, and the clarity of its rules; also, it is a constructive form of productive composition of the different instances of the parties, rather than a mere conflict for supremacy among respective positions, with the Mediator explicitely and actively working for the reach of an agreement (sometimes his reward depending on the effective reach of a result); this figure is absent in other processes.

The typical activity has no formally compulsory methods, even if some common elements are ususally found, mainly consisting of:

  • the clarification and detailed specification of the respective interests and objectives,
  • the conversion of respective subjective evaluations into more objective values,
  • the representation to the parties of a gamma of possible solutions,
  • the verification of eventual effects of possible solutions on respective positions,
  • the adjustment and the refining of the accessory aspects,
  • the translation of the result of treaties into a draft of agreement (usually in written form),
  • the formalisation of the agreement.

Obviously, due to the particular character of this activity, each mediator can use a method of his own (usually laws don't interfere with the mediator's methods), which might eventually be very different from the above scheme, that however contains the main aspects of the process. Also, many matters do not legally require a particular form for the final agreement, while others expressely require a precisely determined form.

The mediator is in most countries subject to a severe respect of his professional secret. In many countries the mediator is granted the right to eventually refuse assisting cases he does not intend taking care of.

Mediation in Business and in Commerce

The eldest branch of mediation applies to business and commerce, and still this one is the widest field of application, with reference to the number of mediators in these activities and to the economical range of total exchanged values.

The mediator in business or in commerce helps the parties to achieve the final goal of respectively buying/selling (a generical contreposition that includes all the possible varieties of the exchange of goods or rights) something at satisfactory conditions (typically in the aim of producing a synallagmatic contract[?]), harmonically bringing the separate elements of the treaty to a respectively balanced equilibrium. The mediator, in the ordinary practice, usually cares of finding a positive agreement between (or among) the parties looking at the main pact as well as at the accessory pacts too, thus finding a composition of all the related aspects that might combine in the best possible way all the desiderata of his clients.

This activity is sometimes scholastically included among those of the auxiliary activities of commerce and business, but it has to be recalled that it differs from the generality of the others because of its character of independence from the parties: in an ordinary activity of agency[?], or in the unilateral mandate this character is obviously missing, this kind of agent merely resulting as a longa manus of the party that gave him his (wider or narrower) power of representation. The mediator does not obey to any of the parties, and is a third party, looking at the contraposition from an external point of view.

The subfields include specialised branches that are very well commonly known: in finance, in insurances, in ship-brokering, in real estate and in some other particular markets, mediators have an own name and usually obey to special laws. Generally the mediator cannot practice commerce in the genre of goods in which he is a specialised mediator.

In most countries the mediator provides a personal warranty in favour of one or all the parties; he is usually held responsible of the correct information of the parties about the effective aspects of the discussed matter, in order to allow them a wise evaluation of principal and minor risks and advantages, consequences and effects of respective choices. This requires that the Mediator have considerable competence in the specific fields of business, a competence that often causes the Mediator to be called for professional appraisals or evaluations for other purposes too. Basically the Mediator has to develop a deep competence in general and particular legal and economic aspects and any eventual accessory aspects (i.e. taxes) that might arise as a direct result of negotiations.

The Mediator may also have the accessory duty of preparing a draft of the acts or contracts that will formally render the sense and the details of the achieved agreements, or even the final contract/act, and celebrate the signature. He also responds of the authenticity of the signatures, the titles and the values that are exchanged.

Mediation as a method of dispute resolution

In the field ot resolving legal controversies, mediation is an informal method of dispute resolution in which a neutral third party, the mediator, attempts to assist the parties in finding resolution to their problem through the mediation process. Although mediation has no legal standing per se, agreements between the parties can (usually with assistance from legal counsel) be committed to writing and signed, thus rendering a legally binding contract in some jurisdiction specified therein.

Mediation differs from most other conflict resolution processes by virtue of its simplicity, and the clarity of its rules. It is employed at all scales from petty civil disputes to global peace talks. It is thus difficult to characterize it independent of these scales or specific jurisdictions[?] - where "Mediation" may in fact be formally defined and may in fact require specific licenses. There are more specific processes (such as peace process or binding arbitration or mindful mediation[?]) referred to directly in the text.

Safety, fairness, closure

These broader political methods usually focus on conciliation, preventing future problems rather than on focused dispute resolution of one matter.

Mediation can be reasonably seen as the simplest of many such processes, where there is no great dispute about political context, jurisdiction has been agreed, whatever process selected the mediator is not in doubt, and there is no great fear that safety, fairness and closure guarantees will be violated by future bad-faith actions.

If some warranty of safety, fairness, and closure can be assumed, then the process can reasonably be called "mediation proper" and be described thus:

Process and role of mediator, in US practice

Generally, the process consists of an introduction by the mediator, the presentation of areas of concern (the issues in dispute) by the complainant, an opportunity for the respondant to reply, and a continuation of alternating responses until either the issue is resolved or the parties are obviously not going to reach agreement. The role of the mediator is to guide the process, insuring that each party has an uninterrupted opportunity to speak and respond, until either resolution or stalemate.

Mediation has been used extensively in a variety of organizations including businesses, schools and non-profit organizations. The process works best when the parties are both seeking resolution to their conflict (or potential conflict) and have no hidden agenda. Mediation has been utilized by some court jurisdictions to decrease caseload, particularly in the area of family law.

Mediation with arbitration

Mediation has sometimes been utilized to good effect when coupled with arbitration, particularly binding arbitration, in a process called, appropriately enough, "mediation/arbitration." In this process, if the parties are unable to reach resolution through mediation, the mediator becomes an arbitrator, shifts the mediation process into an arbitral one, seeks any additional evidence needed (particularly witnesses, if any, since witnesses would not normally be called in a mediation), and renders an arbitral decision.

This process is more appropriate in civil matters where rules of evidence or jurisdiction are not disputed. It resembles in some respects criminal plea-bargaining[?] and Confucian judicial procedure, wherein the judge also plays the role of prosecutor[?] - and renders what in Western European court procedures would be considered an arbitral (even "arbitrary") decision.

Liability of mediator

The role of mediator is less controversial than the role of judge, if only because a mediator may only propose, rather than impose, a contract.

The assumed moral or legal responsibility, or even liability, of the mediator differs drastically in different methods - for instance, in global political negotiations, it is often difficult to find anyone who is sufficiently trusted by both sides to even get a peace process to begin. Accordingly, liability is not assigned to the mediator no matter how badly things go wrong - doing so would discourage future efforts to help.

Liability in the U.S.A.

Differences between the legal definition of civil Mediation in the United States and Mediation in other countries are worth noting, as it is more "professionalized" in the United States, where state laws regarding use of lawyers versus mediators may differ widely. These differences are best understood in a more global context of variances between countries.

Mediation in politics and in diplomacy

Mediation is typically one of the most important activities of diplomats, and it is considered it should be a relevant quality of democratic politicians, given that usually in both these fields the explicitation of the respective mansions (on a formal basis, at least) require the achievement of agreements between separate entities of which the diplomat or the politician are "third" parties by definition (Hobbes and Bodin[?] found that the organs of a state have a mediating power and function).

These activities are usually performed in order to get, on the subjective point of view of this mediator, a recompense that might be in the form of a direct economical advantage, a political advantage, an increased international prestige or influence.

One of many non-violent methods of dispute resolution

In politics and in diplomacy, mediation is an obviously non-violent method of dispute resolution (some indeed argue that other methods would be many), although it is usually assumed or included in definitions of other methods.

Some theorists, notably Rushworth Kidder[?], have claimed that mediation is the foundation of a new (some say "postmodern") ethics - and that it sidesteps traditional ethical issues with pre-defined limits of morality.

Others claim that mediation is a form of harms reduction or de-escalation[?], especially in its large-scale application in peace process and similar negotiation, or the bottom-up way it is performed in the peace movement where it is often called mindful mediation[?]. In this form, it would be derived from methods of Quakers in particular.

Global relevance

The rise of international trade law[?], continental trading blocs, the World Trade Organization and its opposing anti-globalization movement, use of the internet, among other factors, seem to suggest that legal complexity is rising to an intolerable and undesirable point. There may be no obvious way to determine which jurisdiction has precedence over which other, and there may be substantial resistance to settling a matter in any one place.

Accordingly, mediation may come into more widespread use, replacing formal legal and judicial processes sanctified by nation-states. Some, like the anti-globalization movement, believe that such formal processes have quite thoroughly failed to provide real safety and closure guarantees that are pre-requisite to uniform rule of law.

Following an increasing notoriety of the process, and a wider notion of its main aspects and eventual effects, mediation is in recent times frequently proposed as a form of resolution of international disputes, with attention to belligerant situations too.

However, as mediation ordinarily needs to be required by the interested parties and it would be very difficult to impose it, in case one of the parts refuses this process it cannot be a solution.

Fairness

As noted, mediation can only take place in an atmosphere where there is some agreement on safety, fairness and closure, usually provided by nation-states and their legal systems. But increasingly disputes transcend those borders and include many parties who may be in unequal-power relationships[?].

In such circumstances, with many parties afraid to be identified or to make formal complaints, terminology or rules of standing or evidence slanted against some groups, and without power to enforce even "legally binding" contracts, some conclude that the process of mediation would not reasonably be said to be "fair".

Accordingly, even when it is offered and attempts are made to make it fair, mediation itself might not be a fair process, and other means might be pursued.

On a more technical point of view, however, it has to be recalled that the mediation must be required by the parties, and very seldom can it be imposed by "non-parties" upon the parties. Therefore, in presence of entities that cannot be clearly identified, and that practically don't claim for their recognition as "parties", the professional experience of a mediator could only apply to a proposal of definition, that besides would always miss the constitutional elements of a mediation. Moreover, in such circumstances, the counter-party of these eventual entities would very likely deny any prestige of "party" to the opponent, this not consenting any kind of treaty (in a correct mediation).

On a more general point, given that mediation ordinarily produces agreements containing elements to enforce the pacts with facts that can grant its effectiveness, it has to be noted that the legal system is not the only means that will ensure protection to the pacts: modern mediation frequently tends to define economical compensations and warranties too, generally considered of more quick and efficacy. The concrete "power" of an agreement is classically found in the equilibre of the pact, in the sincere conciliation of respective interests and in the inclusion of measures that would make the rupture of the pact very little convenient for the unfaithful party. Pacts that don't have such sufficient warranties are only academically effects of a mediation, but would never respect the deontology of the mediator.

The Wikipedia NPOV dispute procedure may be considered a form of multi-party consensus building online mediation.


See also Conciliation, Negotiation, Mindful mediation[?], Dispute resolution, Life Coaching.



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