If you think you know nothing about mediation, be prepared to think again. Mediation is a concept so old that its origins are impossible to determine with authority. It is something we all encounter on a regular basis and in many different forms, which brings us to the all-important question: what is it?
Mediation is the concept of assisted negotiation. In other words, negotiations between two parties in which a third party is involved to help facilitate the satisfactory resolution of a dispute. For example, during a divorce settlement the two parties concerned may reach an agreement without involving a third party or they may choose to hire opposing legal representatives. As another alternative, they may choose to involve a single independent mediator.
There are several key qualities that are common to all mediation processes, and these help to differentiate mediation from adversarial processes such as those overseen by the courts. First and foremost, mediation processes are voluntary. The two parties to the dispute are able to withdraw from negotiations at any time and for any reason. This is crucial to the spirit and climate of effective mediation, which aims to find a solution which is agreeable to both parties. An independent mediator does not have the authority to impose conditions on either party – any measures taken are contingent on the explicit agreement of both parties.
Mediation processes are generally confidential, although this is not without the occasional exception. This means that both parties are usually free to voice personal concerns within the mediation forum without fear of repercussion, making it a particularly attractive option when sensitive disputes arise in the workplace. As a general rule, the materials and records produced during a mediation process are not admissible as evidence in court. An independent mediator is always obliged to disclose the nature and level of confidentiality guaranteed to mediation participants.
Impartiality is another central feature of mediation. Whilst the legal representatives involved in a court case are required to act in the best interest of their respective clients, by contrast an independent mediator is required to be without bias towards either party. This helps to ensure the collaborative nature of the negotiation process.
If the parties involved in a mediation process wish to obtain legal or expert consultation or advice, this is allowed – although expert advice is never determinative in mediation processes. In other words, a mediation process can be as informed as its participants want it to be.
Perhaps the greatest advantage of mediation over other forms of dispute resolution is that it encourages positive negotiations. Rather than attributing blame, as adversarial legal proceedings do, mediation processes empower their participants to make concessions and compromises that cater to both parties.