Mediation as a Form of Dispute Resolution (1 of 4)

by Deborah Luteran Iwanyshyn, JD, CPA, ASA

What is mediation?

Mediation is a process whereby the parties to a dispute meet, in the presence of an impartial third party, who assists them in defining the issues in dispute and in negotiating a consensual and informed agreement that is customized to the parties needs. The Academy of Family Mediators ("AFM")¹ - Standards of Practice for Family and Divorce Mediation, Preamble states that, " . . . The role of the mediator includes reducing the obstacles to communication, maximizing the exploration of alternatives, and addressing the needs of those it is agreed are involved or affected." " Mediation is based on principles of problem solving that focus on the needs and interests of the participants; fairness; privacy; self determination; and best interest of all family members." The Standards of Conduct for Mediators published as joint standards for the American Bar Association ("ABA") and The Society of Professionals in Dispute Resolution² ("SPIDR") states that, " Self-determination is the fundamental principle of mediation. It requires that the mediation process rely upon the ability of the parties to reach a voluntary, uncoerced agreement."

The ultimate goal of mediation is to assist the parties in designing a solution that specifically addresses their needs and interests. Mediation is much more flexible than either arbitration or litigation in that it allows the parties themselves to design a very particularized solution to their particular dispute that is as detailed or general as the parties desire. It is generally less costly than either arbitration or litigation because the parties avoid the legal formalities required for obtaining pertinent information from each other and they agree in advance to full disclosure of all pertinent information. Additionally, at least in family mediation, attorneys are usually not present at most of the mediation sessions and therefore legal fees are reduced.

When did mediation originate?

Mediation has actually been around since the New Testament times when the apostle Paul encouraged its use in the early Christian church to settle disputes. In the 1930's and 40's labor and union people discovered that it was effective in resolving bargaining disputes. It appears that sometime in the 1970's people began to discover it's benefits in resolving family disputes.

What does "neutral" mean?

To many the term neutral generates the concept of a person who merely observes action and remains uninvolved in the action. A mediator must be proactive, must protect both parties and must help balance any inequities in power and knowledge that occur. These power imbalances can occur frequently in family mediations when parties of varying skills, abilities, and knowledge of the substantive facts and issues are negotiating. A qualified mediator will ensure that the less educated or less assertive party becomes knowledgeable and feels safe in addressing and asserting his needs and wants. The mediator does this by coaching and assigning tasks to improve a party's knowledge and may also include a referral to appropriate sources.

The SPIDR Ethical Standards of Professional Responsibility state that, "They (mediators) should be honest and unbiased, act in good faith, be diligent, and not seek to advance their own interests at the expense of the parties." The AFM Standards of Practice also state that, " The mediator has a duty to ensure balanced negotiations and should not permit manipulative or intimidating negotiation techniques."

What is impartiality?

The AFM Standards of Practice address the issue of impartiality and state, "The mediator is obligated to maintain impartiality toward all participants. Impartiality means freedom from favoritism or bias, either in word or action. Impartiality implies a commitment to aid all participants, as opposed to a single individual, in reaching a mutually satisfactory agreement. Impartiality means that a mediator will not play an adversarial role." The Ethical Standards of SPIDR define "impartiality" in essentially the same manner.

What mediation is not!

Mediation is not a magical cure that provides a win-win situation for the parties. Many disputes do not have win-win solutions. Family disputes, involving divorce and custody matters, generally result in the parties clearly experiencing economic detriment and children must adapt to a new lifestyle that is unpleasant at the least and might be traumatic for them. Business disputes are in many cases personality clashes and involve control issues that need to be addressed in addition to damage issues. Mediation provides a forum where the parties can learn to communicate and listen to each other. Parties might gain respect and understanding of each other's needs and wants, even if all of those needs and wants cannot be met.

How mediation differs from arbitration and litigation

Mediation is a voluntary process that involves the use of an impartial person or persons, by the parties to a dispute, to facilitate informed decision-making so as to assist parties to work together to design a customized solution to their dispute. The parties can customize their solution to suit their needs in a far more detailed fashion than will generally occur if a decision is made for them by either a judge or an arbitrator. No party is ever forced to continue to mediate if she or he decides that mediation is not working. No party ever gives away rights during a mediation session. All decisions are subject to review no matter how far along in the process the parties may be.

Arbitration involves the use of a third person, sometimes selected by the parties and sometimes appointed for them, to listen to their arguments and to examine their evidence and to make a decision for them. Private arbitration, if agreed to by both parties, can be customized to eliminate a lot of the formalities and requirements of litigation. However the arbitrator still makes the final decision and it generally is not as detailed as an agreement that the parties design themselves.

Litigation is generally the most costly and time-consuming method to resolve the disputes of parties. Lawyers are usually required unless the claim is very small. And the procedure is very formal. A judge or jury decides the matter and doesn't usually get involved in details.

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