Mediation is a dynamic, structured, and interactive process in which neutral third parties help dispute parties in resolving conflicts through the use of specialized communication and negotiation techniques. All participants in the mediation are encouraged to participate actively in the process. Mediation is a "party-centered" process because the process is focused primarily on the needs, rights, and interests of the parties. Mediators use a variety of techniques to guide the process in a constructive direction and to help the parties find their optimal solutions. The mediator is facilitative because it manages interaction between parties and facilitates open communication. Mediation is also evaluative because the mediator analyzes relevant issues and norms ("reality testing"), while not providing prescriptive suggestions to the parties (eg, "You must do....").
Mediation, as used in law, is a form of alternative dispute resolution (ADR), a means of resolving disputes between two or more parties with concrete effects. Typically, a third party, a mediator, helps the parties to negotiate a settlement. Disputing parties may mediate disputes across domains, such as commercial, legal, diplomatic, workplace, community, and family issues.
The term "mediation" broadly refers to any event in which a third party helps others reach an agreement. More specifically, mediation has structures, schedules and dynamics that "ordinary" negotiations do not. The process is private and confidential, possibly enforced by law. Participation is usually voluntary. The mediator acts as a neutral third party and facilitates rather than directs the process. Mediation becomes a more peaceful and internationally accepted solution to end the conflict. Mediation can be used to resolve disputes on any scale.
The term "mediation", however, is because language and national legal standards and regulations are not identical in content in all countries but have special connotations and there are differences between the Anglo-Saxon definition and other countries, especially countries with a tradition of civil law, such as Germany or Austria.
Mediators use various techniques to open, or improve, dialogue and empathy between disputants, aimed at helping the parties reach agreement. Much depends on the skills and training of mediators. As the practice gains popularity, training programs, certification and licensing are followed, resulting in trained and professional mediators who are committed to the discipline.
Video Mediation
History
Mediation activity emerged in a very ancient time. Practices developed in Ancient Greece (who knew non-marital mediators as proxenetas ), then in Roman civilization. (Roman law, from Justinian's Digest of 530-533 CE) is recognized as mediation. The Romans summoned mediators by various names, including internuncius intermediate , intercessors , philanthropus , interpolator , conciliator , talk partner , interpres , and finally mediator .
Some cultures regard mediators as sacred figures, who are worthy of respect; and the role partially overlaps with traditional sages or tribal chiefs. Members of the peace community often bring disputes before local leaders or wise men to resolve local conflicts. This peaceful method of conflict resolution is very prevalent in the Confucian and Buddhist communities.
Maps Mediation
Benefits
Benefits of mediation include:
- Cost
- While a mediator can charge a fee comparable to an attorney, mediation generally takes far less time than moving a case through standard legal channels. While a case in the hands of an attorney or court may take months or years to complete, mediation usually reaches resolution within hours. Taking less time means spending less money on fees and hourly fees.
- Privacy
- Although the hearing is open to the public, the mediation remains highly confidential. No one but the disputing parties and mediators or mediators know what happened. Confidentiality in mediation has an interest in such a way that in many cases the legal system can not force a mediator to testify in court about the content or progress of mediation. Many mediators destroyed their records taken during the mediation after the mediation was over. The only exception to such strict confidentiality usually involves child abuse or actual or threatened criminal acts.
- Control
- Mediation increases the party's control over resolution. In court cases, the parties have a resolution, but the control is in the hands of a judge or jury. Often, judges or juries can not legally provide solutions that appear in mediation. Thus, mediation is more likely to produce mutually beneficial results for the parties.
- Compliance
- As results are achieved by parties working together and mutually agreed, adherence to mediated agreements is usually high. This further reduces costs, because the parties do not have to hire an attorney to force compliance with the agreement. However, this mediated agreement can be fully enforceable in court.
- Mutuality
- Parties are usually ready to work together towards resolution. In most circumstances, the fact that mediating parties means that they are ready to "move" their positions. As such, the parties are better able to understand the other side and work on the underlying issues of disagreement. This has the added benefit of often maintaining the relationships held by the parties before the dispute.
- Support
- Mediators are trained to work with difficult situations. The mediator acts as a neutral facilitator and guides the parties through the process. Mediators help parties think "out of the box" to find solutions to disputes, extending the range of possible solutions.
Usage
In addition to dispute resolution, mediation can serve as a means of preventing disputes, such as facilitating the negotiation process of contracts. Governments can use mediation to inform and seek stakeholder input in the formulation or fact-finding aspects of policy-making.
Mediation applies to disputes in many areas:
In business and commercial mediation, business-to-business (B2B), business-to-business (B2E) and business-to-consumer (B2C) differences often occur.
Industrial relations
Australia
ADR, Alternative Dispute Resolution, began in industrial relations in Australia long before the advent of the modern ADR movement. One of the first laws passed by the Commonwealth parliament is the Conciliation and Arbitration Act 1904 (Cth). This allows the Federal Government to pass a law on conciliation and arbitration for the prevention and resolution of industrial disputes beyond any national borders. Conciliation has become the most widely used form of ADR, and is generally far removed from modern mediation.
Significant changes in state policy occurred from 1996 to 2007. The Workplace Relations Act of 1996 (Cth) seeks to shift the industrial system from a collectivist approach, where trade unions and the Australian Industrial Relations Commission (AIRC) have a strong role, a decentralized individual bargaining system between employers and employees. The law reduces the traditional role of AIRC by placing the responsibility of resolving disputes at the enterprise level. This allowed mediation is used to resolve industrial relations disputes rather than traditional conciliation.
In industrial relations under the WorkChoices Act of 2006, amendments to the Workplace Relations Act. An example of the use of this mediation can be seen in the recent bargaining negotiations of the company. The Australian Government claims mediation benefits to include the following:
- Cost savings
- Reduce polarization
- Education
- Wider issue vs. court
- Greater access to justice
- Other controls by disputants over process
Things at work
Implementation of human resource management policies and practices has evolved to focus on individual workers, and rejects all other third parties such as unions and AIRC. HRM together with the political and economic changes undertaken by the Howard Australia government create an environment in which private ADR can be fostered in the workplace.
The decline of unions and the rise of individuals fosters the growth of mediation. This is demonstrated in the industry with the lowest union rate as in the private sector that experienced the greatest growth of mediation.
The Working Options Act of 2006 makes further legislative changes to deregulate industrial relations. The key element of the new change is to weaken AIRC by encouraging competition with personal mediation.
Various disputes occur in the workplace, including disputes between staff members, alleged harassment, contract disputes and workers' compensation claims. In general, workplace disputes are between people who have continuous working relationships in a closed system, indicating that workplace mediation or investigation will be appropriate as a dispute resolution process. But the complexity of relationships, involving hierarchy, job security and competitiveness can complicate mediation.
Party-directed mediation (PDM) is an emerging mediation approach that is particularly suited for disputes between colleagues, colleagues or peers, especially deep-seated interpersonal conflicts, multicultural or multiethnic disputes. The mediator listens to each party separately in pre-caucus or pre-mediation before bringing them into a shared session. Part of the pre-caucus also includes coaching and role playing. The idea is that the parties learn how to speak directly with their enemies in a shared session. Some unique challenges arise when organizational disputes involve supervisors and subordinates. Negotiated performance appraisal (NPA) is a tool for improving communication between superiors and subordinates and is particularly useful as an alternative mediation model as it maintains the power of hierarchical oversight while encouraging dialogue and handling disagreements.
Community mediation
Disputes involving neighbors often do not have an official resolution mechanism. Community mediation centers generally focus on environmental conflicts, with trained local volunteers who act as mediators. Such organizations often serve populations unable to use professional courts or ADR providers. Community programs usually provide mediation for disputes between landlords and tenants, members of homeowners associations and small businesses and consumers. Many community programs offer their services for free or for a nominal fee.
Experimental community mediation programs using volunteer mediators began in the early 1970s in several major US cities. This proved so successful that hundreds of programs were established across the country in the next two decades. In some jurisdictions, such as California, parties have the option of making their agreements workable in court.
In mediation Australia is widely incorporated into Family Law Act family law 1975 and the 2006 Amendment Mandate, subject to certain exceptions, Family Dispute Resolution Mediation is required before the court will consider disputed parenting arrangements. Family Dispute Resolution Practitioners who provide this service are accredited by the Department of Attorney General.
Peer mediation
Peer mediators are people who resemble disputants, like the same age, attend the same school or have similar status in business. It is said that peers better deal with the disputing parties than outsiders.
The mediation of friends promotes social cohesion and fosters the development of protective factors that create a positive school climate. National Healthy School Standards (Ministry of Education and Skills, 2004) highlight the importance of this approach to reduce bullying and improve student achievement. Schools that adopt this process recruit and train interested students to prepare for it.
Peace Pals is an empirically validated colleagues mediation program. studied over a 5-year period and revealed some positive outcomes including reducing violence in primary schools and upgrading social skills, while creating a more positive and peaceful school climate.
The mediation of friends helps reduce crime in schools, saves counselors and administrators time, increases self-esteem, improves attendance and fosters leadership development and problem-solving skills among students. Such conflict resolution programs increased in 40% US schools between 1991 and 1999.
Peace Pals were studied in various suburban primary schools. Peer mediation is available to all students (N = 825). Significant and long-term reductions in school violence over a five-year period occurred. Reductions include verbal and physical conflicts. The mediator's knowledge produces significant benefits related to conflict, conflict resolution and mediation, which are maintained at a 3-month follow-up. In addition, mediators and participants viewed the Peace Pals program effectively and preciously, and all mediation sessions resulted in a successful resolution.
Commercial dispute
Commercial domains remain the most common mediation applications, as measured by the number of mediators and the total exchange rate. The result of business mediation is usually a bilateral contract.
Commercial mediation includes employment in finance, insurance, ship brokering, procurement and real estate. In some areas, mediators have special titles and usually operate under special laws. Generally, mediators can not trade themselves on the market for goods where they work as mediators.
Procurement mediation consists of disputes between public bodies and private entities. In the jurisdiction of general law only the provisions of regulations concerning the manufacture of supply contracts originating from the field of State Assistance (EU Law and domestic application) or general administrative guidelines extend ordinary commercial law. Common contract law applies in the UK. Procurement mediation occurs in the circumstances after the contracting in which there is a dispute with respect to performance or payment. Mediator Procurement in the UK may choose to specialize in this type of contract or a public body may appoint someone to a specific mediation panel.
Original title mediation
In response to Mabo's decision, the Government of Australia seeks to involve the population and industry on Mabo's implications for land tenure and use by adopting the Native Title Act 1993 (Cth), which requires mediation as a mechanism for determining the rights to the original title in the future. This process combines the Federal Court and the National Native Title Tribunal (NNTT). Mediation can occur simultaneously with legal challenges, as happened in Perth.
Some features of the original title mediation that differentiate it from other forms include long timeframes, number of parties (ranged in opportunities into hundreds) and that law and legal prescriptions restrict some aspects of the negotiation.
Global relevance
The effectiveness of mediation in cross-border disputes is questionable, but an understanding of the basic principles of mediation shows the potential for unlimited mediation in such disputes. Mediators explicitly address and manage cultural and linguistic differences in detail during the process. Voluntary directives for mediation are not required - many mediations reach the table through binding contract terms, laws, agreements, or international agreements and agreements. The principle of volunteer applies to the right of the parties to self-determination once they are in mediation - not on the mechanism for initiating the mediation process. Many mediations also result in a form of mutual agreement because they are not binding and they encourage the exploration of the interests and mutual benefits of an agreement. Because the parties themselves, create the terms of the agreement, compliance with the mediated settlement agreement is relatively high. Any compliance or implementation issues can be addressed by follow-up mediation, routine compliance monitoring, and other processes.
South Africa
Since the early 1980s a number of institutions in South Africa have been championing mediation. The South African Independent Mediation Service (IMSSA) was established in 1984. It trains mediators who then work through the Local Dispute Resolution Committee established as part of the National Peace Agreement. The initial training was conducted by the UK ACAS. IMSSA includes mediation in an unionized environment. The recently established Conciliation, Mediation and Arbitration Commission (CCMA) was established as a result of the Labor Relations Act No. 66 1995, and replaces the Industrial Court in dealing with large areas of labor disputes.
An informal process involving communities in the quest for more holistic solutions is evolving.
After 1995, the country established a legal right to take labor disputes to conciliation/mediation. The mediation agreement is binding in law. This process has evolved from generally including collective agreements such as for wages or terms and conditions, to cover more individual matters including dismissal.
Process
Role
Mediator
The central role of the mediator is to act as a neutral third party facilitating discussions between the parties. In addition, a mediator serves in an evaluative role when they analyze, assess problems, and engage in reality testing. A mediator is neutral and they are not agents of any party. In its role, the mediator does not offer prescriptive suggestions (eg, "You must settle the case," or, "Your next offer must be X."). The mediator also manages interaction between the parties and encourages constructive communication through the use of specialized communication techniques.
Finally, the mediator should limit pressure, aggression and intimidation, show how to communicate using good speech and listening skills, and pay attention to non-verbal messages and other signals originating from the mediation context and may contribute expertise and experience. The mediator should direct the parties to focus on issues and move away from personal attacks.
Parties
The roles of the parties vary according to their motivations and skills, the role of legal counsel, the mediation model, the mediating style and the culture in which mediation takes place. Legal requirements can also affect their role. Party-directed mediation (PDM) is a new approach involving pre-caucuses between mediators and each party before entering into a shared session. The idea is to help the parties improve their interpersonal negotiation skills so that in a session together they can talk to each other with small mediator interference.
Authority
One of the common requirements for successful mediation is that those representing each side have full authority to negotiate and resolve disputes. If that's not the case, then there's what Spencer and Brogan refer to as the "empty seat" phenomenon, that is, the person who should have discussed the issue does not exist.
Get started
The first role of the parties is to approve mediation, perhaps before the preparation activities begin. The parties then prepare in a similar way to the negotiation of other varieties. Parties may provide position statements, assessment reports and risk assessment analyzes. Mediators can supervise/facilitate their preparation and may require certain preparations.
Disclosure
Agreements to mediate, mediation rules, and court-based referral orders may have disclosure requirements. The mediator may have explicit or implied power to the parties directly to produce documents, reports, and other materials. In mediation parties the so-called courts usually exchange any material that will be available through discovery or disclosure rules is a matter of continuing the session, including witness statements, assessments and account statements.
Participation
Mediation requires direct input from the parties. Parties shall attend and participate in mediation meetings. Some mediation rules require parties to attend personally. Participation at one stage can compensate for absenteeism at another stage.
Preparation
Choose the right mediator, considering experience, skills, credibility, costs, etc. Criteria for mediator competence are being debated. Competence certainly includes the ability to remain neutral and move the parties despite the various deadlock points in a dispute. Disputes over whether expertise in dispute matters should be considered or actually harm the objectivity of the mediator.
Preparatory steps for mediation may vary according to legal and other requirements, at least getting the parties' willingness to participate.
In some mediation programs connected to the court, the court requires the disputing party to prepare for mediation by making a statement or summary of the subject of the dispute and then bringing the summary to mediation. In other cases, determining the problem in question can be part of the mediation itself.
Consider asking the mediator to meet the dispute before the mediation meeting. This can reduce anxiety, increase the chances of completion and increase satisfaction with the mediation process.
Ensure that all participants are ready to discuss the dispute in a fairly objective way. Readiness is enhanced when disputants consider sustainability of results.
Provide reasonable forecasts of loss and/or damage.
Identify other participants. In addition to disputants and mediators, the process may benefit from the presence of advisor, subject matter expert, translator, family, etc.
Secure a place for each mediation session. The place should encourage discussion, addressing all special needs, protecting privacy and allowing sufficient discussion time.
Ensure that supporting information such as pictures, documents, company records, payment stubs, rent-roll, receipts, medical reports, bank statements, etc. are available.
Ask the parties to sign a contract discussing procedural decisions, including confidentiality, mediator payments, communication techniques, etc.
Meeting
Typical mediation does not have a formal mandatory element, although some elements usually occur:
- the establishment of a basic rule that frames the boundaries of mediation
- parties detail their story
- identification problem
- describe and specify the interests and goals of each
- look for objective criteria
- identifies the option
- discuss and analyze the solution
- customize and refine the proposed solution
- records the agreement in writing
Individual mediators vary these steps to adapt to certain circumstances, given that the law does not normally govern mediator methods.
Post-mediation activity
Ratification and review
Ratification and review provide protection for mediating parties. They also provide an opportunity for people who do not know the secrets of mediation to undermine the outcome. Some mediated agreements require ratification by external bodies - such as councils, councils or cabinets. In some situations, court sanctions or other external authorities must explicitly support mediation agreements. So if a grandfather or non-parent is granted residence rights in a family dispute, a court counselor will be required to give a court report about the benefits of the proposed agreement to assist the final disposition of the court over the case. In other situations it may be agreed to have an agreement reviewed by an attorney, accountant or other professional advisor.
The implementation of the mediated agreement shall be in accordance with the statues and regulations of the regulating jurisdiction.
The parties in the private mediation may also want to get court sanctions for their decision. Under the Queensland regulatory scheme in the courts linking mediation, the mediator is required to file a certificate applicant for mediation in the form prescribed in the rules. A party may then file an application to the relevant court, a command that gives effect to the agreement reached. When court sanctions are not obtained, mediated settlements have the same status as other agreements.
References
The mediator may, at its discretion, refer one or more parties to psychologists, accountants, social workers or others for post-mediation professional assistance.
Mediator debriefing
In some situations, debriefing sessions and post-mediation feedback are conducted between the co-mediator or between the mediator and the supervisor. It involves reflective analysis and process evaluation. In many debriefings the mediation service community is mandatory and the mediator is paid for the debriefing session.
Measuring effectiveness
Mediation recognizes that in addition to the fact of reaching a settlement, the satisfaction of the party and the competence of the mediator can be measured. The mediation survey reveals a strong level of satisfaction with the process. Of course, if a party is generally satisfied post-settlement, then the action may not be very clear.
Mediator
Education and training
Educational requirements for accreditation as mediators differ between accreditation groups and from country to country. In some cases, legislation requires requirements; in other professional institutions apply accreditation standards. Many US universities offer postgraduate studies in mediation, culminating in a PhD or DMed level.
Australia
In Australia, for example, professionals wishing to practice in family law must have a tertiary qualification in law or in social science, conduct 5 days of training in mediation and engage in 10 hours of supervised mediation. In addition, they also have to undergo 12 hours of education or training every 12 months.
Other institutions offer units in mediation in a number of disciplines such as law, social sciences, business, and the humanities. Not all types of mediation work require academic qualifications, as some things are more related to practical skills than with theoretical knowledge. Membership of the organization provides training courses. Internationally similar approaches to mediator training are taken by organizations such as the Center for Effective Dispute Resolution, CEDR. Based in London, has trained over 5000 CEDR mediators from various countries to date.
No national standards are enacted at the level of education applicable to all practitioners' organizations. However, organizations such as the National Alternative Dispute Advisory Council (NADRAC) advocate a wide range of issues. Other systems apply in other jurisdictions such as Germany, which advocate higher levels of educational qualification for mediation practitioners.
Code of conduct
Common elements of the code of ethics include:
- inform the participants of the mediation process
- adopt a neutral stance
- reveal potential conflicts of interest
- maintain confidentiality within legal limits
- awareness of psychological and physical well-being of all participants
- directing participants to the appropriate source for legal advice
- engage in ongoing training
- just practice in areas where they have expertise.
Australia
In Australia, the code of conduct of mediation includes those developed by the Law Society of South Australia and Western Australia and developed by organizations such as the Institute of Arbitrators & Australian Mediator (IAMA) and LEADR. The CPR/Georgetown Ethics Committee, the Union International Deconcentration Forum, and the European Commission have adopted a code of conduct for mediators.
Canada
In Canada the code of ethics for mediators is established by professional organizations. In Ontario, three different professional organizations maintain a code of conduct for mediators. The Family Dispute Resolution Institute of Ontario and the Ontario Family Watch Association set standards for their family mediating members and the Ontario Alternative Dispute Resolution Institute that set standards for their members.
The Alternative Dispute Resolution Institute of Ontario, a regional affiliate of the Alternate Dispute Resolution Institute of Canada, uses a code of ethics from a federal organization to regulate the conduct of its members. The three purposes of the Code are to provide guiding principles for mediating; to increase confidence in mediation as a process for resolving disputes; and to provide protection for community members who use institutional mediators.
French
In France, professional mediators have created an organization to develop a rational approach to conflict resolution. This approach is based on a "scientific" definition of a person and a conflict. These definitions help to develop a structured mediation process. The mediator has adopted a code of ethics that guarantees professionalism.
German
In Germany, due to the Mediation Act of 2012, mediation as a mediator's process and responsibilities is legally defined. Based on the German language and specific codification (so-called "Funktionaler Mediator") one must take into account, that all persons "mediate" in a conflict (defined as facilitation without evaluation and proposals for solutions!) Are bound by the provisions of the Mediation Act even if they refer to the approach/the process is not mediation but facilitation (Prozessbegleitung), conciliation (Schlichtung), conflict counseling (Konflikt-Beratung), consultation (Berberian Organizations), conflict coaching, or whatever happens. For example, by seconds. 2 and seconds. 3 of the German Mediation Act, the mediator has certain information and disclosure obligations and practice limits. In particular, a person who has been in the form of a counseling role (legal, social, financial, etc.) To a party in this case is not allowed to act as a mediator in the case (part 3 par 3 and 4 ACT German Mediation - called "Vorbefassungsverbot" ).
Accreditation
Australia
Organizations in Australia accredit mediators. Standards vary according to the specific mediation and degree of specificity desired. Standards apply to certain ADR processes.
The National Mediator Accreditation System (NMAS) commenced operations on 1 January 2008. It is an industry-based scheme that relies on voluntary compliance by mediating organizations that agree to accredit mediators according to the required standards.
The mediating organization has a variety of ideals about what makes a good mediator that reflects the training and accreditation of a particular organization. Australia does not adopt a national accreditation system, which may lead to a less than optimal choice of mediators.
German
According to seconds. 6 German Mediation Act of the German government on 21 June 2016 has released a German regulation on education and training called (official term) "certified mediator" beginning September 1, 2017 postulates at least 120 hours of initial specialized mediator training as well as further case supervision and ongoing training from 40 hours in 4 years. Beyond these basic qualifications, prominent mediation associations (BAFM, BM, BMWA and DGM) have approved higher quality standards than the minimum standards of national regulations to certify their mediators. To become an accredited mediator of this association one must complete an accredited mediation training course of at least 200 hours including. 30 hours of ongoing supervision and training (30-40 hours in three years). "
Options
The choice of a mediator has a practical meaning given the various mediation models, the mediator's discretion in crafting the process and the impact of the mediator's professional background and personal style on outcomes.
In a community mediation program, the director generally assigns mediators. In New South Wales, for example, when the parties can not approve the mediator, the registrar contacts the nominating entity, such as the Bar Association which gives the name of a qualified and experienced mediator.
In 2006, formal mechanisms for rejecting the appointment of certain mediators have not been established. Parties may request the mediator to resign for reasons of a conflict of interest. In some cases, the law establishes criteria for mediators. In New South Wales, for example, the Family Law Act 1975 (Cth) prohibits qualification for mediators.
Criteria
Here are some useful criteria for choosing a mediator:
- Personal attributes - patience, empathy, intelligence, optimism, and flexibility
- Qualifications - knowledge of conflict theory and practice, negotiation and mediation, mediation skills.
- Experience of mediation, experience in the substantial field of disputes and personal life experiences
- Training
- Professional background
- Certification and its value
- Conformity of the mediation model
- Disclosure of Conflict of Interest Potentials
- Cost/cost
Third party nomination
The contract that determines mediation may also determine a third party to suggest or impose an individual. Some third parties maintain only a list of approved individuals, while others train mediators. The list may be "open" (anyone competent and qualified to join can) or a "closed" panel (invite only).
In the UK and internationally, the list is generally open, such as The Chartered Institute of Arbitrators, Effective Dispute Resolution Center. Alternatively, private panels side by side and compete for appointments, such as Relief Mediation.
Liability
Legal responsibility may come from mediation. For example, a mediator may be responsible for misleading the parties or even inadvertently breaching the confidentiality. Despite such risks, follow-up courts are rare. Only one case reached the stage in Australia in 2006. Damage to awards is generally compensatory. Proper training is the best protection of mediators.
Liability may arise for the mediator of the Obligations in the Contract; Liability in Tort; and Liability for Breach of Fiduciary Liability.
Obligations in the Contract arise if a mediator breaches a contract (written or oral) with one or more parties. Both violations are failure to commit and anticipatory violation . Limitations on liability include requirements to indicate the real cause.
The obligation in Tort arises if a mediator influences a party in any way (sacrificing the integrity of the decision), defames a party, breaches confidentiality, or most commonly, negligent. To be compensated, the party must show the actual damage, and should indicate that the mediator's actions (and not the actions of that party) are the true cause of the damage.
Responsibility for Fiduciary Offenses Obligations can occur if the parties misunderstand their relationship with the mediator as something other than neutrality. Because the responsibility depends on misunderstandings, court action is unlikely to succeed.
Tapoohi v Lewenberg (Australia)
In 2008 Tapoohi v Lewenberg was the only case in Australia that set a precedent for mediator responsibility.
This case involved two sisters who completed a house through mediation. Only one sister attended the mediation personally: the other participated by telephone with her attending attorney. Agreement has been implemented. At that point it verbally states that before the final settlement, the taxation advice should be sought because a large transfer of property will trigger a capital gains tax.
Tapoohi paid Lewenberg $ 1.4 million instead of land. A year later, when Tapoohi realized that taxes were indebted, he sued his sister, lawyer, and mediator based on the fact that the treaty was subject to further taxation advice.
The original agreement was verbal, without any formal approval. Tapoohi, a lawyer himself, alleged that the mediator violated his contractual obligations, in the absence of an official agreement; and further the allegedly painful offense of his duty of care.
Although the court rejected the summary request of the decision, the case determined that the mediator has an obligation to care for the parties and that the parties may hold them accountable for violating the duties of such treatment. Habersberger J holds it "not beyond the argument" that a mediator can breach its contractual and abusive obligations. Such claims should be assessed at the trial.
This case emphasizes the need for formal mediation treaties, including clauses that limit the responsibilities of mediators.
United States
In the United States, the laws governing mediation differ by country. Some countries have clear expectations for certification, ethical standards, and confidentiality. Some also free the mediators from giving testimony in the cases they are working on. However, the law only covers activities within the court system. Commercial mediators and communities practicing outside the court system may not have such legal protection. State laws on lawyers can be very different from those that include mediators. Professional mediators often consider liability insurance options.
Variant
Evaluative mediation
Evaluative mediation is focused on providing the parties with their case evaluation and leading them toward completion. During the evaluative mediation process, when the parties agree that the mediator must do so, the mediator will express his views on what might be a fair or reasonable settlement. The Evaluative Mediator has little advisory role in that he evaluates the strengths and weaknesses of each party's arguments and makes some predictions about what will happen if they go to court. Facilitative and transformative mediators do not evaluate arguments or direct parties to a particular settlement.
In Germany, because the national regulation of "evaluative mediation" is seen as an oxymoron and is not permitted by the German mediation law. Therefore, in Germany mediation is purely facilitative.
Facilitative mediation
Facilitative mediators usually do not evaluate a case or direct parties to a particular settlement. Instead, Facilitator mediator facilitates conversation. This mediator acts as a process guard, not a content or a result. During a facilitative mediation session, the parties to the dispute control what will be discussed and how their problem will be resolved. Unlike transformative mediators, facilitative mediators are focused on helping parties find solutions to their disputes and for that, facilitative mediators provide structures and agendas for discussion.
Transformative mediation
Transformative mediation sees conflict as a crisis in communication. Success is not measured by settlement but by the parties shifting towards (a) personal strength, (b) interpersonal responses, (c) constructive interactions, (d) new understanding of themselves and their situation; (e) critically examining the possibilities , f) feeling better about each other, and (g) making their own decisions. The decision may include a settlement agreement or not. The practice of transformative mediation is focused on supporting empowerment and recognition changes, by enabling and encouraging deliberation, decision making, and perspective taking. The practice of competent transformative mediators with a micro focus on communication, identifying opportunities for empowerment and recognition as opportunities that arise in the conversations of the parties themselves, and responding in ways that provide an opening for the parties to choose what, if any, should done with them.
Narrative mediation
The narrative approach to mediation shares with narrative therapy that emphasizes building stories as basic human activities in understanding our lives and conflicts. This approach emphasizes the sociological/psychological nature of conflict-saturated narratives, and values ​​human creativity in acting and reacting to these narratives. "Narrative metaphors draw attention to the ways in which we use stories to understand our lives and our relationships." The mediation narrative supports the changing way we talk about conflict. In disclosing narrative conflicts, participants become less tied to problems and more creative in finding solutions. "That person is not the problem, the problem is the problem" according to narrative mediation.
Mediation with arbitration
Mediation is sometimes best utilized when combined with arbitration, especially binding arbitration, in a process called 'mediation/arbitration'. This process begins as a standard mediation, but if mediation fails, the mediator becomes a referee.
This process is more appropriate in civil matters where the rules of evidence or jurisdiction are not disputed. This resembles, in some cases, criminal justice procedures and criminal justice, where judges also play the role of prosecutors - making what, in Western European court procedures, will be considered arbitration (even 'arbitrary') decisions.
Mediation/arbitration hybrids can pose significant ethical and process problems for mediators. The many choices and successes of mediation relate to the unique role of the mediator as someone who does not use coercive power over the parties or the results. The consciousness of the parties that the mediator may later act in the role of the judge may distort the process. Using different individuals as arbitrators overcomes this problem.
Online
Online mediation uses online technology to provide the parties access to disputes to mediators and each other despite geographic distances, disabilities or other obstacles to direct meetings. The online approach also facilitates mediation when the value of the dispute does not justify the cost of face-to-face contact. Online mediation can also be combined with face-to-face mediation - to allow for quicker mediation and/or for initial discussions.
Biased mediation
The neutral mediator enters the conflict with the primary goal of ending the conflict. This objective tends to accelerate the mediator to reach a conclusion. Mediator bias enters into conflict with certain bias for one party or another. Mediator biases seek protection against their party's interests thus leading to better resolution and more lasting.
Alternative
Mediation is one of several approaches to resolve disputes. This differs from the process of hostile resolution based on simplicity, informality, flexibility, and economy. Mediation provides an opportunity for parties to agree to the terms and solve their own problems, without the need for legal representation or court hearings.
Not all disputes match the mediation. Success is impossible except:
- All parties' are ready and willing to participate.
- All (or none) parties have legal representation. Mediation does not include the right to legal counsel.
- All parties have a legal age (despite viewing peer mediation) and are legally competent to make decisions.
Conciliation
Conciliation sometimes serves as an umbrella term that includes mediation and facilitative dispute resolution and consultation processes. No process determines the outcome, and both share many similarities. For example, both processes involve a neutral third party that has no enforcing power.
One significant difference between conciliation and mediation lies in the fact that the conciliators have an expert knowledge of the domain in which they are reconciled. The conciliator may make suggestions on the terms of the settlement and may advise on the subject matter. Conciliators can also use their roles to actively encourage the parties to reach a resolution. In some types of disputes, the conciliator has an obligation to provide legal information. This helps ensure that the agreement complies with the relevant legal framework. Therefore, conciliation may include the advisory aspect.
Pure mediation is facilitative: the mediator has no advisory role. Instead, a mediator seeks to assist parties to develop a common understanding of the conflict and strive to build a practical and lasting resolution.
Both mediation and conciliation work to identify disputed issues and to generate options that help disputants reach a satisfactory resolution. They both offer a relatively flexible process. Any settlement generally must have the consent of all parties. This contrasts with litigation, which usually resolves disputes that benefit the party with the strongest legal arguments. Among them run a collaborative law, which uses a facilitative process in which each side has advice.
Counseling
A counselor generally uses therapeutic techniques. Some - like certain line of questions - may be useful in mediation. But the role of counselor is different from the role of mediator. The list below is not exhaustive but gives an indication of an important difference:
- A mediator aims for clear agreement among participants on how they will deal with specific issues. A counselor is more concerned with those who gain a better understanding of their individual behaviors.
- The mediator, while acknowledging one's feelings, does not explore them in depth. A counselor basically cares about how people feel about relevant experiences.
- A mediator focuses on the participant's future goals rather than a detailed analysis of past events. A counselor may feel the need to explore the past in detail to expose the origin and pattern of beliefs and behaviors.
- The mediator controls the process but does not openly try to influence the participants or the actual results. A counselor often takes a deliberate role in the process, trying to influence the parties to move in a certain direction or to consider specific issues.
- A mediator depends on all parties present to negotiate, usually face-to-face. A counselor does not always see all parties at the same time.
- A mediator must be neutral. A counselor can play a more supportive role, if necessary.
- Mediation requires both parties to negotiate. Counseling can work with one party even if others are not ready or willing to participate.
- Mediation is a structured process that is usually completed in one or more sessions. Counseling tends to be sustainable, depending on the needs and progress of the participants.
Initial neutral evaluation
The early neutral evaluation techniques (ENE) have a focus on market inetership, and - based on that focus - offer a basis for sound case management or suggested resolution of all cases in very early stages.
In a preliminary neutral evaluation, the evaluator acts as a neutral person to assess the strengths and weaknesses of each side and to discuss the same with the parties collectively or in caucus, so that the parties gain awareness (through independent evaluation) of the benefits of they. case.
Parties generally call senior advisors or panels with expertise and experience in the subject being debated to ENE.
Arbitrage
Binding arbitration is a more direct substitute for the formal court process. Binding Arbitration is usually performed in front of one or three arbitrators. The process is similar to a mini experiment with rules of evidence, etc. Arbitration usually takes place faster than the courts and usually at a lower cost. The arbitrator makes a final decision rather than the parties. Arbitrary decisions are usually final and appeals rarely succeed even though they appear to one of the most absurd parties.
Litigation
In litigation, the courts impose their thoughts on both sides. The court in some cases referred the litigants to mediation. Mediation is usually cheaper, less formal and less complex. Unlike courts, mediation does not guarantee binding agreements and the mediator does not decide the outcome.
Shuttle diplomacy
While mediation implies bringing disputants face each other, the "shuttle diplomacy" strategy, in which the mediator serves as a liaison between the disputing parties, also sometimes occurs as an alternative.
Philosophy
Conflict prevention
Mediation can anticipate difficulties between parties before the conflict arises. Grievance handling and management is a conflict prevention mechanism designed to handle complaints effectively at the first contact, minimizing the likelihood of disputes. One term for this role is the "antidote to the dispute".
Confidentiality
One of the advantages of mediation is that the process is very secret. Two competing principles affect secrecy. One principle encourages secrecy to encourage people to participate, while the second principle states that all relevant facts must be available to the courts.
The mediator must inform the parties of their responsibility for confidentiality.
Steps are enforced during the mediation to help ensure this privacy includes:
- All sessions take place behind closed doors.
- Outsiders can observe the process only with the agreement of both parties.
- The meeting was not recorded.
- Publicity is prohibited.
Confidentiality is a powerful and interesting mediation feature. This lowers the risks for participants in disclosure of information and emotions and encourages realism by eliminating the benefits of attitudes. In general, the information discussed in mediation can not be used as evidence if the matter is processed to the court, in accordance with mediation and general law treaties.
Some mediations succeed unless parties can communicate fully and openly without fear of compromising with a potential court case. The promise of secrecy eases those concerns. Organizations often see secrecy as an excuse to use mediation as a substitute for litigation, particularly in sensitive areas. This contrasts with the general nature of the courts and other courts. But mediation does not need to be private and confidential. In some circumstances, the parties agree to open partial or full mediation. The law can limit confidentiality. For example, the mediator must disclose alleged physical or other harassment to the authorities. The more parties in mediation, the less likely that the perfect secrecy will be maintained. Some may even be asked to provide an explanation of mediation outside constituents or authorities.
Most countries respect the confidentiality of mediators.
Without prejudice privileges
Unprecedented privileges in common law indicate that in an honest effort to achieve a settlement, any offer or acceptance can not be used in court when the subject is the same. This applies to the mediation process. The rules are exceptions.
Unprecedented privileges do not apply if they are excluded by either party or if privileges are released in the process. Although mediation is private and confidential, disclosure of privileged information in the presence of a mediator does not constitute a waiver of privilege.
Legal implications
The parties entering into mediation shall not lose their legal rights or remedies. If mediation does not result in a settlement, each party may continue to enforce its rights through appropriate court or tribunal procedures. However, if mediation results in a settlement, legal rights and obligations will be affected in different degrees. In some situations, parties may accept a memorandum or agreement of moral force; this is often found in community mediation. In another example, a more comprehensive treaty deed, when registered in court, is legally binding. It is advisable to have a lawyer plan or provide legal advice on the proposed provisions.
"The court system wants to introduce mandatory mediation as a means to meet their need to reduce case burdens and hostile litigation, and participants who understand the empowerment of mediation to self-determinate their agreements are equally eager to accept mediation as an alternative to costly and potentially hazardous litigation."
Principles
The principles of mediation include non-adversarialism, responsiveness, self-determination and party autonomy.
Non-adversarialism is based on the actual mediation process. It treats the parties as collaborating in the construction of the agreement. Conversely, litigation is explicitly hostile in that each party seeks to subdue the other against his or her views. Mediation is designed to conclude by agreement rather than winners and losers.
Responsiveness reflects the intention to enable the parties to make resolutions beyond the strict rules of the legal system. The responsive mediation process is also informal, flexible, and collaborative.
Self-determination and party autonomy allow and require parties to choose an area of ​​agreement, rather than giving decisions to outside decision-makers such as judges. It changes responsibility for results to the parties themselves.
In the United States, mediator codes of ethics emphasize solutions "directed by clients" rather than forced solutions. This has been a common and definitive mediation feature in the US and UK.
Ethics
Theorists, notably Rushworth Kidder, who founded the Institute for Global Ethics in 1980, claimed that mediation was the 'postmodern' ethical foundation - and that he set aside the traditional ethical problem with the prescribed limits of morality.
Mediation can also be seen as a form of harm reduction or de-escalation, especially in large-scale implementation in peace and similar negotiations, or a bottom-up in a peace movement where it is often called attentive mediation. This form comes from the Quaker method in particular.
Conflict management
Source of the article : Wikipedia
0 Comments