Mediation

Because of the pervasive presence of conflict and the physical, emotional, and resource costs that often arise due to disputes, people have always sought ways by which to resolve differences. In seeking such outcomes, they have attempted to develop efficient procedures, allowing them to satisfy their own interests, whilst minimising suffering and controlling unnecessary expenditure of resources.

Meditation is one such method (an alternative to self-help or formal legal procedures), which can be seen as an extension or elaboration of negotiation processes (a bargaining relationship between two parties which have a perceived or actual conflict of interests and actively seek to form some common ground to which both will be satisfied somewhat). This system involves the introduction of a third party who has a limited or no authoritative decision making power (this method has probably been practiced since the existence of three or more people on earth). This third person assists the principle parties in voluntarily reaching a mutually acceptable settlement of issues. As with negotiation, mediation leaves the decision making power primarily in the hands of the conflicting parties. It is a voluntary process in that the participants must be willing to accept the assistance of the intervenor in order to help manage or resolve differences.

This form of arbitration is a private process in that the proceedings, and often the outcome, are not open for public scrutiny. People select such systems because of it’s private nature, and because it is more informal, less expensive, and faster than a judicial proceeding.

In ancient China, mediation was the principle means of resolving disputes (Confucian view was that optimum resolution of disputes was achieved by moral persuasion and agreement rather than sovereign coercion). Likewise, Japanese law and custom is rich in this form of resolution, and is probably one of the contributing factors for the minute number of lawyers present within that system. Provisions for such conciliation of personal disputes have been present in Japan prior to World War II.

Extended families and kinship circles around the world have also provided for mediation resources. But it should be noted that the gathering of rural families into villages, the development of villages into cities, and then the uprising of the nuclear family has seen a somewhat reduction in dispute resolution through family – thus the development and increase of formal mechanisms for dispute resolution.

Ethnic and religious groups, as well as other subcultures, have historically established their own alternative systems for dispute resolution based on their desire to retain their own means of resolving conflict, in order to avoid the imposition of the majority government’s values. In fact, Christian communities have perceived Jesus as the supreme mediator since the conception of the bible (‘For there is one God, and one mediator between God and man, the man Jesus Christ; who gave himself as ransom for all, to be testified in due time’ – I Timothy 2:5-6).

For the most part, mediators in other ages and cultures were trained informally and they fulfilled their roll in the context of other functions or duties. Only since the turn of the twentieth century has mediation become formally institutionalised and developed into a recognised profession. The modern practice of mediation has expanded exponentially worldwide, especially in the last thirty years. This growth is partly due to a wider acknowledgment of individual human rights and dignity, the expansion of aspirations for democratic participation at all social and political levels, the belief that an individual has a right participate in and take control decisions affecting his or her life, an ethic supporting private ordering, and trends in some locales for broader tolerance of diversity in all its aspects. Change has also been motivated by growing dissatisfaction with authoritative, top down decision making procedures, imposed settlements that do not adequately address parties’ strong felt or genuine interests, and the increasing cost – in money, time, human resources, interpersonal and community solidarity – or more adversarial, win-lose procedures of dispute resolution (mediation strives for a win-win scenario unlike other methods).

A mediator may be called into negotiations when:

• Emotions are running wild and preventing settlement
• Communication between parties is so poor that resolution is greatly diminished
• Misperceptions or stereotypes are hindering productivity
• Repetitive negatives are creating barriers
• There exist serious disagreements over data – what information is important, how it is to be collected, and how it will be evaluated
• Multiple issues exist, of which both parties disagree as to order and combination for addressing purposes
• Presence of perceived or actual incompatible interests, causing reconciliation difficulties
• Perceived or actual value differences divide parties
• Parties are using the wrong – or do not posses negotiating procedures
• Parties are having problems initiating negotiations or have reached an impasse in their bargaining

It should be remembered that such dispute settlement is but one of many methods by which to resolve conflicts. Each process has different steps, and some are more effective and desirable depending on individual circumstances. For this reason, it is important that mediators understand such methods, and at times refer to, or even use them.

In retrospect, mediation is a conflict resolution process which, when integrated with a supportive legal system, provides the participants with not only a plan of action for the future but also a greater sense of satisfaction about the process they have actively undergone. Mediation overall minimises intrusion, emphasises cooperation, involves self-determined criteria of resolution, and provides a model of interaction for future disputes.