| Mediation comprises an act of bringing two | | | | is sometimes used as an umbrella term that |
| states, sides or parties in a dispute closer | | | | covers all mediation and facilitative and |
| together toward agreement through alternative | | | | advisory dispute resolution processes. |
| dispute resolution (ADR), a dialogue in which | | | | Sometimes the terms mediation and |
| a (generally) neutral third party, the | | | | conciliation can be interchangeable but often |
| mediator, using appropriate techniques, | | | | it is not appropriate for this to occur. Both |
| assists two or more parties to help them | | | | processes are non determinative and they have |
| negotiate an agreement, with concrete | | | | many similarities. The main difference is |
| effects, on a matter of common interest. More | | | | that conciliators have some degree of expert |
| generally speaking, the term "mediation" | | | | knowledge of the content in the area that |
| covers any activity in which an impartial | | | | they conciliating. A conciliator can make |
| third party (often a professional) | | | | suggestions for settlement terms and can also |
| facilitates an agreement on any matter in the | | | | give advice on the subject matter which makes |
| common interest of the parties involved. | | | | conciliation more of an advisory service. The |
| | | | conciliator can use their role to actively |
| Mediation applies to different fields, with | | | | encourage the parties to come to a resolution |
| some common peculiar elements and some | | | | but the conciliator is in no way |
| differences for each of its specialties. The | | | | determinative. In some types of conciliations |
| main fields of mediation include commerce, | | | | the conciliator has a responsibility to |
| legal disputes and diplomacy, but forms of | | | | provide legal information so that any |
| mediation appear in other fields as well. | | | | agreement made can fit into the statutory |
| Mediation in marriage technically belongs in | | | | framework that is required in the area that |
| the category, although it has followed its | | | | is subject to the conciliation. Mediation is |
| own peculiar history since the times of | | | | purely facilitative whereas conciliation is a |
| ancient Greeks: compare marriage counselling. | | | | mixture of an advisory dispute resolution |
| | | | service and facilitation. The term mediation |
| History of dispute mediation | | | | is used where the practitioner has no |
| | | | advisory role, if the practitioner does have |
| The activity of mediation in itself appeared | | | | an advisory role then the term conciliation |
| in very ancient times. Historians presume | | | | should be used. Both mediation and |
| early cases in Phoenician commerce (but | | | | conciliation identify the disputed issues and |
| suppose its use in Babylon, too). The | | | | use options to endeavour to reach an |
| practice developed in Ancient Greece (which | | | | agreement. |
| knew the non-marital mediator as a | | | | |
| proxenetas), then in Roman civilization, | | | | Franchise agreements signify an ongoing |
| (Roman law (starting from Justinian's Digest | | | | commercial agreement between the contracting |
| of 530 - 533) recognised mediation. The | | | | parties. The agreements that are usually |
| Romans called mediators by a variety of | | | | entered into have elements of imbalance of |
| names, including internuncius, medium, | | | | bargaining power and business experience |
| intercessor, philantropus, interpolator, | | | | between the franchisee and franchisor; there |
| conciliator, interlocutor, interpres, and | | | | are also many external commercial pressures |
| finally mediator. | | | | that the parties are faced with. The |
| | | | franchising code of conduct is a mandatory |
| The Middle Ages regarded mediation | | | | code under the TPA. All franchise agreements |
| differently, sometimes forbidding the | | | | are required to have a clause that requires |
| practice or restricting its use to | | | | dispute resolution. Mediation in this field |
| centralized authorities. Some cultures | | | | is working because it can identify |
| regarded the mediator as a sacred figure, | | | | alternatives for the parties and then the |
| worthy of particular respect; and the role | | | | parties can work together to solve the |
| partly overlapped with that of traditional | | | | dispute. For this type of mediation there are |
| wise men. | | | | more formal procedures such as who ever |
| | | | wishes to initiate the mediation is required |
| Mediation and conciliation | | | | to advise the respondent in writing outlining |
| | | | the nature of the dispute and they will then |
| There has been much debate on the distinction | | | | have three weeks to agree to a method of |
| between conciliation and mediation and there | | | | resolving the dispute otherwise they may go |
| is still no universal agreement. Conciliation | | | | to mediation. |