Mediation
Mediation isactivitywhichneutral third party,mediator, assists two or more partiesorderhelp them achieve an agreement,concrete effects, onmattercommon interest; lato sensuany activitywhich an agreement on whatever matterresearched by an impartial third party, usuallyprofessional, incommon interest ofparties.
Mediation appliesdifferent fields,some common peculiar elementssome differenceseachits specialties. The main fieldsapplicationmediationbusiness commerce, legal disputediplomacy, but minor forms can be foundother fields too. The mediationmarriagestechnically admitted incategory, even iffollows an own history sincetimesancient Greeks.
The activityitselfindeed very ancient, presumably startedPhoenician commerce (buthas been supposedwasuseBabylon too),developedGreece (wheremediatorcalled proxenetas - not insensemarriage mediator), thenRoman civilisation, where mediationrecognisedroman law starting form Justinian's Digesto. In Romemediator was called withvarietynames, among which internuncius, medium, intercessor, philantropus, interpolator, conciliator, interlocutor, interpres,finally mediator. DuringMiddle Ages, mediation has been differently considered, sometimes forbidden, or its practice has been restrictedcentralised authorities. In some cultureswas insteadsacred figure, tributedparticular respect, partly coincidentthattraditional wise men.
Common aspectsMediation
The common aspectsmediation, that seemapplyallfieldsapplication, could be concisely summarised inpresencethese basic factors:
- a controversy,dispute or genericallycontraposition,differencepositions between (or among)respective parties (in business orcommerce this isordinary position ofparties who intend achieving an agreement);
- the freenot conditioned will ofpartiesfindpositive solutiontheir problem andacceptdiscussion about respective interestsobjectives;
- the intentionachievingpositive result throughconstructive help ofthird person, usually independent, neutralin no connection at allany ofinvolved parties (as opposite tointentionachieving respective goals inconflictual way);
- the intentionachievingsteady result, preferablyper selasting agreement.
Mediation differs from most other contraposition resolution processes by virtueits simplicity, andclarityits rules; also,isconstructive formproductive composition ofdifferent instances ofparties, rather thanmere conflictsupremacy among respective positions, withMediator explicitelyactively working forreachan agreement (sometimes his reward depending oneffective reach ofresult); this figureabsentother processes.
The typical activity has no formally compulsory methods, even if some common elementsususally found, mainly consisting of:
- the clarificationdetailed specification ofrespective interestsobjectives,
- the conversionrespective subjective evaluations into more objective values,
- the representation toparties ofgamutpossible solutions,
- the verificationeventual effectspossible solutions on respective positions,
- the adjustment andrefining ofaccessory aspects,
- the translation ofresulttreaties intodraftagreement (usuallywritten form),
- the formalisation ofagreement.
The mediatorin most countries subject tosevere respecthis professional secret. In many countriesmediatorgrantedrighteventually refuse assisting cases he does not intend taking care of.
MediationBusinessin Commerce
The eldest branchmediation appliesbusinesscommerce,still this one iswidest fieldapplication,reference tonumbermediatorsthese activitiestoeconomical rangetotal exchanged values.
The mediatorbusiness orcommerce helpspartiesachievefinal goalrespectively buying/selling (a generical contreposition that includes allpossible varieties ofexchangegoods or rights) something at satisfactory conditions (typically inaimproducingsynallagmatic contract), harmonically bringingseparate elements oftreaty torespectively balanced equilibrium. The mediator, inordinary practice, usually caresfindingpositive agreement between (or among)parties looking atmain pact as well as ataccessory pacts too, thus findingcompositionallrelated aspects that might combine inbest possible way alldesideratahis clients.
This activitysometimes scholastically included among those ofauxiliary activitiescommercebusiness, buthasbe recalled thatdiffers fromgenerality ofothers becauseits characterindependence fromparties:an ordinary activityagency, or inunilateral mandate this characterobviously missing, this kindagent merely resulting aslonga manus ofparty that gave him his (wider or narrower) powerrepresentation. The mediator does not obeyany ofparties,isthird party, looking atcontraposition from an external pointview.
The subfields include specialised branches thatvery well commonly known:finance,insurances,ship-brokering,real estatein some other particular markets, mediators have an own nameusually obeyspecial laws. Generallymediator cannot practice commerce ingenregoodswhich he isspecialised mediator.
In most countriesmediator providespersonal warrantyfavourone or allparties; heusually held responsible ofcorrect information ofparties abouteffective aspects ofdiscussed matter,orderallow themwise evaluationprincipalminor risksadvantages, consequenceseffectsrespective choices. This requires thatMediator have considerable competence inspecific fieldsbusiness,competence that often causesMediatorbe calledprofessional appraisals or evaluationsother purposes too. BasicallyMediator hasdevelopdeep competencegeneralparticular legaleconomic aspectsany eventual accessory aspects (i.e. taxes) that might arise asdirect resultnegotiations.
The Mediator may also haveaccessory dutypreparingdraft ofacts or contracts that will formally rendersense anddetails ofachieved agreements, or evenfinal contract/act,celebratesignature. He also responds ofauthenticity ofsignatures,titles andvalues thatexchanged.
Mediation asmethoddispute resolution
Infield ot resolving legal controversies, mediationan informal methoddispute resolutionwhichneutral third party,mediator, attemptsassistpartiesfinding resolutiontheir problem throughmediation process. Although mediation has no legal standing per se, agreements betweenparties can (usuallyassistance from legal counsel) be committedwritingsigned, thus renderinglegally binding contractsome jurisdiction specified therein.
Mediation differs from most other conflict resolution processes by virtueits simplicity, andclarityits rules. Itemployed at all scales from petty civil disputesglobal peace talks. Itthus difficultcharacterizeindependentthese scales or specific jurisdictions - where "Mediation" mayfact be formally definedmayfact require specific licenses. Theremore specific processes (such as peace process or binding arbitration or mindful mediation) referreddirectly intext.
Safety, fairness, closure
These broader political methods usually focus on conciliation, preventing future problems rather than on focused dispute resolutionone matter.
Mediation can be reasonably seen assimplestmany such processes, where thereno great dispute about political context, jurisdiction has been agreed, whatever process selectedmediatornotdoubt,thereno great fear that safety, fairnessclosure guarantees will be violated by future bad-faith actions.
If some warrantysafety, fairness,closure can be assumed, thenprocess can reasonably be called "mediation proper"be described thus:
Processrolemediator,US practice
Generally,process consistsan introduction bymediator,presentationareasconcern (the issuesdispute) bycomplainant, an opportunity forrespondantreply, andcontinuationalternating responses until eitherissueresolved orpartiesobviously not goingreach agreement. The role ofmediator isguideprocess, insuring that each party has an uninterrupted opportunityspeakrespond, until either resolution or stalemate.
Mediation has been used extensively invarietyorganizations including businesses, schoolsnon-profit organizations. The process works best whenpartiesboth seeking resolutiontheir conflict (or potential conflict)have no hidden agenda. Mediation has been utilized by some court jurisdictionsdecrease caseload, particularly inareafamily law.
Mediationarbitration
Mediation has sometimes been utilizedgood effect when coupledarbitration, particularly binding arbitration, inprocess called, appropriately enough, "mediation/arbitration." In this process, ifpartiesunablereach resolution through mediation,mediator becomes an arbitrator, shiftsmediation process into an arbitral one, seeks any additional evidence needed (particularly witnesses, if any, since witnesses would not normally be called inmediation),renders an arbitral decision.
This processmore appropriatecivil matters where rulesevidence or jurisdictionnot disputed. It resemblessome respects criminal plea-bargainingConfucian judicial procedure, whereinjudge also playsroleprosecutor -renders whatWestern European court procedures would be considered an arbitral (even "arbitrary") decision.
Liabilitymediator
The rolemediatorless controversial thanrolejudge, if only becausemediator may only propose, rather than impose,contract.
The assumed moral or legal responsibility, or even liability, ofmediator differs drasticallydifferent methods -instance,global political negotiations, itoften difficultfind anyone whosufficiently trusted by both sideseven getpeace processbegin. Accordingly, liabilitynot assigned tomediator no matter how badly things go wrong - doing so would discourage future effortshelp.
Liability inU.S.A.
Differences betweenlegal definitioncivil Mediation inUnited StatesMediationother countriesworth noting, as itmore "professionalized" inUnited States, where state laws regarding uselawyers versus mediators may differ widely. These differencesbest understood inmore global contextvariances between countries.
Mediationpoliticsin diplomacy
Mediationtypically one ofmost important activitiesdiplomats,itconsideredshould berelevant qualitydemocratic politicians, given that usuallyboth these fieldsexplicitation ofrespective mansions (onformal basis, at least) requireachievementagreements between separate entitieswhichdiplomat orpolitician"third" parties by definition (HobbesBodin found thatorgans ofstate havemediating powerfunction).
These activitiesusually performedorderget, onsubjective pointviewthis mediator,recompense that might be inform ofdirect economical advantage,political advantage, an increased international prestige or influence.
Onemany non-violent methodsdispute resolution
In politicsin diplomacy, mediationan obviously non-violent methoddispute resolution (some indeed argue that other methods would be many), although itusually assumed or includeddefinitionsother methods.
Some theorists, notably Rushworth Kidder, have claimed that mediation isfoundation ofnew (some say "postmodern") ethics -thatsidesteps traditional ethical issuespre-defined limitsmorality.
Others claim that mediation isformharms reduction or de-escalation, especiallyits large-scale applicationpeace processsimilar negotiation, orbottom-up way itperformed inpeace movement where itoften called mindful mediation. In this form,would be derived from methodsQuakersparticular.
Global relevance
The riseinternational trade law, continental trading blocs,World Trade Organizationits opposing anti-globalization movement, use ofinternet, among other factors, seemsuggest that legal complexityrisingan intolerableundesirable point. There may be no obvious waydetermine which jurisdiction has precedence over which other,there may be substantial resistancesettlingmatterany one place.
Accordingly, mediation may come into more widespread use, replacing formal legaljudicial processes sanctified by nation-states. Some, likeanti-globalization movement, believe that such formal processes have quite thoroughly failedprovide real safetyclosure guarantees thatpre-requisiteuniform rulelaw.
Following an increasing notoriety ofprocess, andwider notionits main aspectseventual effects, mediationin recent times frequently proposed asformresolutioninternational disputes,attentionbelligerant situations too.
However, as mediation ordinarily needsbe required byinterested partiesit would be very difficultimpose it,case one ofparts refuses this processcannot besolution.
Fairness
As noted, mediation can only take placean atmosphere where theresome agreement on safety, fairnessclosure, usually provided by nation-statestheir legal systems. But increasingly disputes transcend those bordersinclude many parties who may beunequal-power relationships.
In such circumstances,many parties afraidbe identified ormake formal complaints, terminology or rulesstanding or evidence slanted against some groups,without powerenforce even "legally binding" contracts, some conclude thatprocessmediation would not reasonably be saidbe "fair".
Accordingly, even when itofferedattemptsmademakefair, mediation itself might not befair process,other means might be pursued.
Onmore technical pointview, however,hasbe recalled thatmediation must be required byparties,very seldom canbe imposed by "non-parties" uponparties. Therefore,presenceentities that cannot be clearly identified,that practically don't claimtheir recognition as "parties",professional experience ofmediator could only apply toproposaldefinition, that besides would always missconstitutional elements ofmediation. Moreover,such circumstances,counter-partythese eventual entities would very likely deny any prestige"party" toopponent, this not consenting any kindtreaty (incorrect mediation).
Onmore general point, given that mediation ordinarily produces agreements containing elementsenforcepactsfacts that can grant its effectiveness,hasbe noted thatlegal systemnotonly means that will ensure protection topacts: modern mediation frequently tendsdefine economical compensationswarranties too, generally consideredmore quickefficacy. The concrete "power"an agreementclassically found inequilibre ofpact, insincere conciliationrespective interestsininclusionmeasures that would makerupture ofpact very little convenient forunfaithful party. Pacts that don't have such sufficient warrantiesonly academically effects ofmediation, but would never respectdeontology ofmediator.
See also Conciliation, Negotiation, Mindful mediation, Dispute resolution, Life Coaching.
