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