Mediation Is

Lynn Johnson

According to the ABA/AAA/ACR and others, “Mediation is a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision-making by the parties to the dispute.”  Mediation is an intuitive process that when done right, “just works.”  Being the neutral third party, a mediator, who “does it right” takes training and practice. This article will explore where mediation came from, its common sense principles, and its potential to evolve.  

Without getting too philosophical, it’s not hard to imagine a story for the evolution of mediation.  That story might go something like this. As long as there have been people, there have been differences between each one of those people and all the others – people are unique.  The potential for disagreement exists when the needs or desires of any two people are not the same.  

People who are not involved in the disagreement can ignore it, support one of the disagreeing parties, or they can act as a neutral attempting to help the parties find a peaceful resolution. Whenever the relationship is important enough, or the consequences of the dispute severe enough, neutral outside parties can intervene out of concern for the parties. 

Historically, it is reasonable to think some people were better than others at helping disputing parties find agreement.  As a result, successful neutrals might have been asked to help more often. Successful neutrals got more opportunities to learn and improve their knowledge and skills. 

It’s likely that successes were talked about and passed on so it’s reasonable to assume that being a neutral, a mediator, evolved as did the skills and knowledge they learned.  Having successful outcomes and having successful resolutions that lasted, would seem likely reasons for mediation to sustain and become more widespread.    

Given that mediation has sustained and become more widely accepted, what are some of the assumptions and principles that are characteristic of successful mediation?  Since most mediation training shares assumptions and principles, that is a place to start looking for answers.

Common assumptions include: 

  1. People know what’s best for themselves.
  2. When people are given appropriate information and a safe environment for decision-making they can make good decisions.
  3. Often what people ask for is not what they need or even what they want.
  4. Agreements last longer when they are created by the parties themselves.
  5. The mediation process can rely on common sense parties have and trust.
  6. The best solutions offer what the parties need without requiring anyone to give up something they value.
  7. People respond best when they feel respected and heard.

A core set of principles that support those assumptions includes:

  1. Mediation works best when the parties are free to take part or not. 
  2. Making the communications and other works of mediation confidential, inadmissible, and not discoverable, encourages parties to share more openly and effectively.
  3. Having the parties be responsible for decisions about who the mediator is, what the process is and what the rules are is very important.
  4. When parties can trust the “good faith” participation of the other parties, they can take part openly revealing relevant information that can make agreement possible.
  5. Understanding that having an opinion or perspective that is different from that of the other parties does not mean you are right, or they are wrong.

As a dispute resolution method, mediation has unique strengths. Mediation is not rocket science, most people can use it effectively.  Most people naturally want the reduction of tension and the useless expenditure of energy that mediation can deliver.  Mediation relies on the collective knowledge and collaboration of the parties.  The mediation process is confidential, that contributes to more willing and open participation of the parties. Outside authority or agency is not required.  Mediation can be applied close to the issue and when it’s needed.  Since mediation is less expensive, it can be used by more people in more situations.  Further, mediation uses the skills and knowledge people use in their everyday lives.

Mediation’s use is growing globally. Whether it continues to grow or retreats into disuse is a question for history.  Reasons to be optimistic exist. Mediation is part of what people do naturally so it evolves with the integration of knowledge and technology into peoples’ lives.  It is available to the widest set of people.  Mediation relies on skills and knowledge that are distributed normally in the population.  Mediation can be applied to the widest range of issues including cross-jurisdictional and emerging technology disputes.  People intuitively trust mediation and practice it where and when they feel it’s needed.

Given all this, what is likely to happen to mediation as a practice?  Informal mediation is likely to stay as long as people find it useful.  But because informal mediation is informal, it may not fully take advantage of the evolution of knowledge and technology.  

The formalized practice of mediation must prove itself as have other professions such as medicine, law, psychology, chemistry etc. The the public must be assured that mediation practitioners follow agreed ethical guidelines and that information is easily available to help select appropriate mediators.  Practitioners must be assured that if they qualify to be identified as practitioners of formal mediation and adhere to the ethical codes of the practice, they can expect to enjoy the status and protection of a professional.