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Mediation is a process of alternative dispute resolution in which a neutral third party, the mediator, assists two or more parties in order to help them achieve an agreement, with concrete effects, on a matter of common interest; lato sensu is any activity in which an agreement on whatever matter is researched by an impartial third party, usually a professional, in the common interest of the parties.
Mediation applies to different fields, with some common peculiar elements and some differences for each of its specialties. The main fields of application of mediation are business commerce, legal dispute and diplomacy, but minor forms can be found in other fields too. The mediation in marriages is technically admitted in the category, even if it follows an own history since the times of ancient Greeks.
The activity in itself is indeed very ancient, presumably started with Phoenician commerce (but it has been supposed it was in use in Babylon too), and developed in Greece (where the mediator is called proxenetas - not in the sense of marriage mediator), then in Roman civilisation, where mediation is recognised in roman law starting form Justinian's Digesto. In Rome the mediator was called with a variety of names, among which internuncius, medium, intercessor, philantropus, interpolator, conciliator, interlocutor, interpres, and finally mediator. During the Middle Ages, mediation has been differently considered, sometimes forbidden, or its practice has been restricted to centralised authorities. In some cultures it was instead a sacred figure, tributed a particular respect, partly coincident with that of traditional wise men.
Mediation is employed at all scales from petty civil disputes to global peace talks. It is thus difficult to characterize it independent of these scales or specific jurisdictions - where "Mediation" may in fact be formally defined and may in fact require specific licenses. This article attempts only to be a broad introduction, with more specific processes (such as peace process or binding arbitration or business and commerce, and still this one is the widest field of application, with reference to the number of mediators in these activities and to the economical range of total exchanged values.
The mediator in business or in commerce helps the parties to achieve the final goal of respectively buying/selling (a generical contreposition that includes all the possible varieties of the exchange of goods or rights) something at satisfactory conditions (typically in the aim of producing a agency, or in the unilateral mandate this character is obviously missing, this kind of agent merely resulting as a longa manus of the party that gave him his (wider or narrower) power of representation. The mediator does not obey to any of the parties, and is a third party, looking at the contraposition from an external point of view.
The subfields include specialised branches that are very well commonly known: in finance, in insurances, in ship-brokering, in real estate and in some other particular markets, mediators have an own name and usually obey to special laws. Generally the mediator cannot practice commerce in the genre of goods in which he is a specialised mediator.
In most countries the mediator provides a personal warranty in favour of one or all the parties; he is usually held responsible of the correct information of the parties about the effective aspects of the discussed matter, in order to allow them a wise evaluation of principal and minor risks and advantages, consequences and effects of respective choices. This requires that the Mediator have considerable competence in the specific fields of business, a competence that often causes the Mediator to be called for professional appraisals or evaluations for other purposes too. Basically the Mediator has to develop a deep competence in general and particular legal and economic aspects and any eventual accessory aspects (i.e. taxes) that might arise as a direct result of negotiations.
The Mediator may also have the accessory duty of preparing a draft of the acts or contracts that will formally render the sense and the details of the achieved agreements, or even the final contract/act, and celebrate the signature. He also responds of the authenticity of the signatures, the titles and the values that are exchanged.
In the field ot resolving legal controversies, mediation is an informal method of dispute resolution in which a neutral third party, the mediator, attempts to assist the parties in finding resolution to their problem through the mediation process. Although mediation has no legal standing per se, agreements between the parties can (usually with assistance from legal counsel) be committed to writing and signed, thus rendering a legally binding contract in some jurisdiction specified therein.
Mediation differs from most other conflict resolution processes by virtue of its simplicity, and the clarity of its rules. It is employed at all scales from petty civil disputes to global peace talks. It is thus difficult to characterize it independent of these scales or specific jurisdictions - where "Mediation" may in fact be formally defined and may in fact require specific licenses. There are more specific processes (such as peace process or binding arbitration or mindful mediation) referred to directly in the text.
These broader political methods usually focus on conciliation, preventing future problems rather than on focused dispute resolution of one matter.
Mediation can be reasonably seen as the simplest of many such processes, where there is no great dispute about political context, jurisdiction has been agreed, whatever process selected the mediator is not in doubt, and there is no great fear that safety, fairness and closure guarantees will be violated by future bad-faith actions.
If some warranty of safety, fairness, and closure can be assumed, then the process can reasonably be called "mediation proper" and be described thus:
Generally, the process consists of an introduction by the mediator, the presentation of areas of concern (the issues in dispute) by the complainant, an opportunity for the respondant to reply, and a continuation of alternating responses until either the issue is resolved or the parties are obviously not going to reach agreement. The role of the mediator is to guide the process, insuring that each party has an uninterrupted opportunity to speak and respond, until either resolution or stalemate.
Mediation has been used extensively in a variety of organizations including businesses, schools and non-profit organizations. The process works best when the parties are both seeking resolution to their conflict (or potential conflict) and have no hidden agenda. Mediation has been utilized by some court jurisdictions to decrease caseload, particularly in the area of family law.
Mediation has sometimes been utilized to good effect when coupled with arbitration, particularly binding arbitration, in a process called, appropriately enough, "mediation/arbitration." In this process, if the parties are unable to reach resolution through mediation, the mediator becomes an arbitrator, shifts the mediation process into an arbitral one, seeks any additional evidence needed (particularly witnesses, if any, since witnesses would not normally be called in a mediation), and renders an arbitral decision.
This process is more appropriate in civil matters where rules of evidence or jurisdiction are not disputed. It resembles in some respects criminal plea-bargaining and Confucian judicial procedure, wherein the judge also plays the role of prosecutor - and renders what in Western European court procedures would be considered an arbitral (even "arbitrary") decision.
It's important to remember this such mediation/arbitration hybrid can pose significant ethical and process problems for a mediator. Many of the options and successes of mediation relate to the mediator's unique role as someone who does not have coercive power over the parties and outcome. If parties in a mediation are aware that the mediator might later in time need to turn around and act in the role of judge, it can dramatically distort the process. Thankfully, mediation-arbitration often involves using different individuals in the role of mediator and (if needed later) arbitrator, but this is still not always the case.
The role of mediator is less controversial than the role of judge, if only because a mediator may only propose, rather than impose, a contract.
The assumed moral or legal responsibility, or even liability, of the mediator differs drastically in different methods - for instance, in global political negotiations, it is often difficult to find anyone who is sufficiently trusted by both sides to even get a peace process to begin. Accordingly, liability is not assigned to the mediator no matter how badly things go wrong - doing so would discourage future efforts to help.
Differences between the legal definition of civil Mediation in the United States and Mediation in other countries are worth noting, as it is more "professionalized" in the United States, where state laws regarding use of lawyers versus mediators may differ widely. These differences are best understood in a more global context of variances between countries.
Even within the United States, the laws governing mediation varies greatly on a state-by-state basis. Some states have fairly sophisticated laws concerning mediation, incluidng clear expectations for certification, ethical standards, and protections that ensure a mediator not be called to testify in a case they've worked on (preserving the confidential nature of mediation). However, even in states that have such developed laws around mediation, that law only relates to mediators working within the court system. Community and commercial mediators practicing outside the court system may very well not have these same sorts of legal protections.
Liability insurance is often an option that professional mediators consider. It's traditionally been marketed through professional dispute resolution organization.
Mediation is typically one of the most important activities of diplomats, and it is considered it should be a relevant quality of democratic politicians, given that usually in both these fields the explicitation of the respective mansions (on a formal basis, at least) require the achievement of agreements between separate entities of which the diplomat or the politician are "third" parties by definition (Hobbes and Bodin found that the organs of a state have a mediating power and function).
These activities are usually performed in order to get, on the subjective point of view of this mediator, a recompense that might be in the form of a direct economical advantage, a political advantage, an increased international prestige or influence.
In politics and in diplomacy, mediation is an obviously non-violent method of dispute resolution (some indeed argue that other methods would be many), although it is usually assumed or included in definitions of other methods.
Some theorists, notably Rushworth Kidder, have claimed that mediation is the foundation of a new (some say "postmodern") ethics - and that it sidesteps traditional ethical issues with pre-defined limits of morality.
Others claim that mediation is a form of harms reduction or de-escalation, especially in its large-scale application in peace process and similar negotiation, or the bottom-up way it is performed in the peace movement where it is often called mindful mediation. In this form, it would be derived from methods of Quakers in particular.
The rise of international trade law, continental trading blocs, the World Trade Organization and its opposing anti-globalization movement, use of the internet, among other factors, seem to suggest that legal complexity is rising to an intolerable and undesirable point. There may be no obvious way to determine which jurisdiction has precedence over which other, and there may be substantial resistance to settling a matter in any one place.
Accordingly, mediation may come into more widespread use, replacing formal legal and judicial processes sanctified by nation-states. Some, like the anti-globalization movement, believe that such formal processes have quite thoroughly failed to provide real safety and closure guarantees that are pre-requisite to uniform rule of law.
Following an increasing notoriety of the process, and a wider notion of its main aspects and eventual effects, mediation is in recent times frequently proposed as a form of resolution of international disputes, with attention to belligerant situations too.
However, as mediation ordinarily needs to be required by the interested parties and it would be very difficult to impose it, in case one of the parts refuses this process it cannot be a solution.
As noted, mediation can only take place in an atmosphere where there is some agreement on safety, fairness and closure, usually provided by nation-states and their legal systems. But increasingly disputes transcend those borders and include many parties who may be in Conciliation
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