| Mediation is older than any legal system. The great | | | | Judges, who have decided hundreds or thousands of |
| Bacon wrote the praises of mediation nearly four | | | | cases, or who have observed hundreds of juries |
| hundred years ago, in one of his celebrated Essays: | | | | reaching a verdict, are often trusted by parties to |
| "It is generally better to deal by speech than by letter, | | | | render an evaluation, which the parties may find useful |
| and by the mediation of a third, than by a man's self . . . | | | | in coming to a decision about their particular dispute. |
| in all negotiations of difficulty, a man must not look to | | | | However, not only retired judges are used for the |
| sow and reap at once, but must prepare business, and | | | | purpose of evaluation. Persons engaged in a |
| so ripen by degrees." Francis Bacon (1561-1626) | | | | construction dispute will often go to an engineer, |
| To mediate means: | | | | general contractor, or other person with subject matter |
| 1. To bring about (an agreement, peace, etc.), as an | | | | expertise. |
| intermediary between parties by compromise, | | | | A facilitative mediator is one who stresses that the |
| reconciliation, removal of misunderstanding, etc. | | | | function of his job is to enable, or facilitate, parties to |
| 2. To settle (disputes, strikes, etc.), as an intermediary | | | | communicate and negotiate with each other, in order |
| between parties: reconcile. | | | | to arrive at their own evaluation and resolution. A |
| 3. To effect (a result) or convey (a message, gift, etc.), | | | | facilitative mediator may consider it unethical to render |
| by or as by an intermediary. | | | | an opinion. The facilitative style may require greater |
| 4. To act between parties to effect an agreement, | | | | patience and skill in enabling parties to craft their own |
| compromise, or reconciliation. | | | | resolution, than may be necessary for an evaluative |
| 5. To occupy an intermediate place or position. | | | | mediator. Parties may prefer an evaluative mediator |
| 6. Acting through, dependent on, or involving an | | | | when they wish to resolve their dispute and proceed |
| intermediate agency; not direct or immediate." | | | | on their separate ways. Facilitative mediation may be |
| Mediation means: | | | | more desirable where the parties wish to, or must, |
| 1. Action in mediating between parties, as to effect an | | | | engage in a continuing relationship with each other, so |
| agreement or reconciliation. | | | | that the particular dispute is merely a roadblock that |
| 2. International law, an attempt to effect a peaceful | | | | needs to be overcome in order to enable that |
| settlement between disputing nations through the | | | | continuing relationship. |
| friendly good offices of another power." | | | | Many mediators are perfectly willing to be either |
| Synonym(s): | | | | evaluative or facilitative, as the situation demands. |
| 1. Mediation, arbitration designate processes for bringing | | | | The third type of mediator is called "transformative", |
| about agreement for a reconciliation between | | | | and the goal of transformative mediation is far bolder, |
| opponents in a dispute. Mediation implies deliberation | | | | and more like therapy, than the goal of traditional, |
| that results in solutions that may or may not be | | | | evaluative or facilitative mediation. "Transformation" |
| accepted by the contending parties: mediation settled | | | | suggests that the goal is to affect a transformation, in |
| the strike. Arbitration involves a more formal | | | | the parties themselves, and in their relationship. |
| deliberation, it being understood that the results will be | | | | Transformation means (1) act or process of |
| binding on the contending parties: "the strike was | | | | transforming; state of being transformed. (2) Change in |
| settled only after arbitration." | | | | form, appearance, nature, or character. (3) Theatrical, a |
| (All definitions are reproduced from Webster's | | | | seemingly miraculous change in the appearance of |
| Encyclopedic Unabridged Dictionary of the English | | | | scenery or actors in view of the audience. |
| Language) | | | | In "Mediating Dangerously," (2001) Kenneth Cloke, a |
| Webster's synonyms tend to confuse mediation with | | | | pioneer of transformational mediations, writes: |
| arbitration. Arbitration is designed to produce a result | | | | "The transformational or elicitive model of mediation... |
| with a winner and a loser; it is a not a process for | | | | views conflict as something to be learned from, and |
| "bringing about agreement for a reconciliation." | | | | the parties as ready for introspection and fundamental |
| Mediation unlike arbitration is not designed to produce | | | | change. The mediator becomes an empathetic yet |
| winners and losers, but precisely a reconciliation of | | | | honest agent, whose role is to elicit recognition and |
| differences. Mediation attempts to be win-win. They | | | | empower the parties to solve their own problems. ... |
| are both "alternative dispute resolution" mechanisms, | | | | Personally I use a modified version of the |
| but one bears little resemblance to the other. | | | | transformational model, based a more intuitive, |
| Webster does accurately state the role of mediator | | | | integrative, dangerous approach to mediation. I neither |
| as intermediary between parties to a dispute. Mediation | | | | direct nor stand apart from the conflict, but interact |
| is as old as civilization and pre-dates anything | | | | with the parties and reflect on possibilities, based on |
| resembling legal process. The mediator is a | | | | intuitive assessments at the time." |
| go-between, who passes busily from party to party in | | | | The function of a mediator is to enable change. A |
| an attempt to assist them reconcile their differences. In | | | | mediator is a catalyst whose presence and skills |
| late classical Athens, the comedies of Menander often | | | | enable change. The type of change so enabled is the |
| featured a wily slave who carried messages, and in | | | | most difficult of all - change of mind. |
| the country house farces beloved of Victorian | | | | Change is needed for movement to occur. Movement |
| audiences, the chambermaid often served as an | | | | is needed for the disputants to approach each other. |
| intermediary between two lovers. The Aztecs, who | | | | The disputants must approach each other for |
| had no written language, used messengers or | | | | negotiation to occur. Negotiation must occur for |
| intermediaries to convey exact messages of | | | | solutions to be explored. Solutions must be explored |
| outstanding length. Carrier pigeons have been used to | | | | for the disputants to achieve a resolution that satisfies |
| carry messages for hundreds of years, and can | | | | competing interests. |
| navigate over endless uncharted miles, but so far no | | | | At some level, disputants cherish their dispute, and the |
| carrier pigeon has become a mediator. | | | | emotions and attitudes that accompany it - they want |
| Though a mediator may lack some of the abilities of a | | | | to lay down the burden yet are reluctant to do so. |
| carrier pigeon, she can and does carry messages, but | | | | They want the satisfaction that accompanies winning. |
| that is the least of her functions. She is a trained | | | | They want not merely to win; they want to other side |
| professional who has the skills to overcome numerous | | | | to lose, and preferably be manifestly seen to lose. |
| obstacles, the perseverance to continue the process | | | | When an outsider hears both sides of a conflict, she |
| despite all impulses of the parties to end it, and who is | | | | may get the impression that the disputants are in |
| able at length to bring them to closure of the particular | | | | illusion, the competing illusions colliding in conflict. One or |
| dispute despite their differences, and sometimes | | | | both of them has "got it wrong." If both sides are |
| achieve a full reconciliation. Such results are not easily | | | | brought to share roughly the same reality, or view of |
| achieved, and such skills are not easily learned. | | | | the case, they settle. This is called by many colloquial |
| The textbooks say that there are three ways to | | | | expressions, like "getting into the same ballpark," |
| mediate, or three types of mediator. These are 1) | | | | "getting into the same zip code," etc. The presence |
| evaluative 2) facilitative 3) transformative. | | | | and skills of the mediator tilt the balance in favor of |
| An evaluative mediator is one who is prepared to | | | | reality, rationality, and closure. |
| express an opinion as to the likely outcome of a | | | | The three bedrock principles by which mediation is |
| dispute. Parties who seek an evaluative mediator will | | | | conducted are (1) confidentiality (2) voluntary |
| often choose a retired judge. The prerequisite for | | | | participation and (3) party control of outcome. |
| giving an evaluation is subject matter expertise. | | | | |