Business, Legal & Accounting Glossary
Mediation is a dynamic, structured, interactive process where an impartial third party assists disputing parties in resolving conflict through the use of specialized communication and negotiation techniques.
It is an informal, voluntary, and confidential form of conflict resolution which allows a third party to assist in resolving a legal conflict between two parties. It is often used in divorce and allows a settlement without going to trial.
In mediation, a trained mediator helps people in conflict discuss concerns and, when possible, decide a fair solution. The benefit of mediation is it allows for a mediator, who is a neutral person, to help parties discuss their conflicts. The mediator, however, does not decide who “wins” or “loses.”
Mediation allows for a third party to evaluate each party’s side, identify the issues, discuss the party’s needs and help each party talk about solutions. Mediation can be done together with each party or independently. The benefit of mediation is can save cost and time over going to trial. Some conflicts will require each party to attempt mediation prior to trial.
Intervention in a dispute in order to resolve it; arbitration. n. the attempt to settle a legal dispute through active participation of a third party (mediator) who works to find points of agreement and make those in conflict agree on a fair result. Mediation differs from arbitration, in which the third party (the arbitrator) acts much like a judge in an out-of-court, less formal setting but does not actively participate in the discussion. Mediation has become very common in trying to resolve domestic relations disputes (divorce, child custody, visitation) and is often ordered by the judge in such cases.
Mediation also has become more frequent in contract and civil damage cases. There are professional mediators or lawyers who do some mediation for substantial fees, but the financial cost is less than fighting the matter out in court and may achieve early settlement and an end to anxiety. However, mediation does not always result in a settlement.
A dispute resolution method designed to help warring parties resolve their own dispute without going to court. In mediation, a neutral third party (the mediator) meets with the opposing sides to help them find a mutually satisfactory solution. Unlike a judge in her courtroom or an arbitrator conducting a binding arbitration, the mediator has no power to impose a solution. No formal rules of evidence or procedure control mediation; the mediator and the parties usually agree on their own informal ways to proceed.
Mediation, a form of alternative dispute resolution (ADR), also refers to appropriate dispute resolution, and aims to assist two (or more) disputants in reaching an agreement. Whether an agreement results or not, and whatever the content of that agreement, if any, the parties themselves determine — rather than accepting something imposed by a third party. The disputes may involve states, organizations, communities, individuals or other representatives with a vested interest in the outcome.
Mediators use appropriate techniques and/or skills to open and/or improve dialogue between disputants, aiming to help the parties reach an agreement (with concrete effects) on the disputed matter. Normally, all parties must view the mediator as impartial.
Disputants may use mediation in a variety of disputes, such as commercial, legal, diplomatic, workplace, community and family matters.
The activity of mediation in itself appeared in very ancient times. Historians presume early cases in Phoenician commerce (but suppose its use in Babylon, too). The practice developed in Ancient Greece (which knew the non-marital mediator as a proxenetas), then in Roman civilization, (Roman law (starting from Justinian’s Digest of 530 – 533 CE) recognized mediation. The Romans called mediators by a variety of names, including internuncius, medium, intercessor, philantropus, interpolator, conciliator, interlocutor, interpres, and finally mediator.
The Middle Ages regarded mediation differently, sometimes forbidding the practice or restricting its use to centralized authorities. Some cultures regarded the mediator as a sacred figure, worthy of particular respect; and the role partly overlapped with that of traditional wise men or chieftain.
Much debate has focused on the distinction between conciliation and mediation, and no universal agreement has emerged..
“Conciliation” sometimes serves as an umbrella term that covers all mediation and facilitative and advisory dispute-resolution processes.  Neither process determines an outcome, and both share many similarities. For example, both processes involve a neutral third-party who has no enforcing powers.
One significant difference between conciliation and mediation lies in the fact that conciliators possess expert knowledge of the domain in which they conciliate. The conciliator can make suggestions for settlement terms and can give advice on the subject matter. Conciliators may also use their role to actively encourage the parties to come to a resolution. In certain types of dispute the conciliator has a duty to provide legal information. This helps any agreement reached to comply with any relevant statutory framework pertaining to the dispute. Therefore conciliation may include an advisory aspect.
Mediation works purely facilitatively: the practitioner has no advisory role. Instead, a mediator seeks to help parties to develop a shared understanding of the conflict and to work toward building a practical and lasting resolution.
Several different styles of mediation exist: evaluative, facilitative, and transformative. Evaluative mediation does have somewhat of an advisory role in that its practitioners evaluate the strengths and weaknesses of each side’s argument should they go to court; whereas facilitative mediators and transformative mediators do not do this. Furthermore, their definitions of mediation differ in that evaluative mediation has the main drive and goal of settlement, while transformative mediation, in contrast, looks at conflict as a crisis in communication and seeks to help resolve the conflict thereby allowing people to feel empowered in themselves and better about each other. The agreement that arises from this type of mediation occurs as a natural outcome of the resolution of conflict.
Both mediation and conciliation serve to identify the disputed issues and to generate options that help disputants reach a mutually-satisfactory resolution. They both offer relatively flexible processes; and any settlement reached should have the agreement of all parties. This contrasts with litigation, which normally settles the dispute in favour of the party with the strongest legal argument. In-between the two operates collaborative law, which uses a facilitative process where each party has counsel.
Franchise-agreements represent ongoing commercial agreements between the contracting parties. The agreements usually have elements of an imbalance of bargaining power and of an imbalance of business experience between the franchisee and franchisor; and the parties also face many external commercial pressures.
The franchising code of conduct functions as a mandatory code under the TPA. All franchise agreements must have a clause that requires dispute resolution. Mediation in this field works because it can identify alternatives for the parties and then the parties can work together to solve the dispute. For this type of mediation, there are more formal procedures such as whoever wishes to initiate the mediation is required to advise the respondent in writing outlining the nature of the dispute and they will then have three weeks to agree to a method of resolving the dispute otherwise they may go to mediation.
The technique of early neutral evaluation (ENE) provides early focus in complex commercial disputes, and — based on that focus — offers a basis for sensible case-management or a suggested resolution of the entire case in its very early stages.
In early neutral evaluation, an evaluator acts as a neutral person to assess the strengths and weaknesses of each of the parties and to discuss the same with parties jointly or in caucuses, so that parties gain awareness (via independent evaluation) of the merits of their case. In the case of mediation, solutions normally emerge from the parties themselves and mediators endeavour to find the most acceptable solution by bridging gaps between the parties.
Parties generally call on a senior counsel or on a panel with expertise and experience in the subject-matter under dispute in order to conduct ENE. One refers to such persons as “evaluators” or as “neutral persons”.
Suitable education and training for mediators becomes a complex issue — largely due to the breadth of areas which may call on mediation as a means of dispute resolution. Debate ensues on what constitutes adequate training on the principles of mediation as well as what personal attributes an individual needs in order to effectively fulfil a mediator’s role.
The educational requirements for accreditation as a mediator differ between accrediting groups and from country to country. In some cases, legislation mandates these requirements; whilst in others professional bodies impose standards and applicants must comply prior to becoming accredited by them.
In Australia, for example, professionals wanting to practise in the area of family law must have tertiary qualifications in law or in social science, undertake 5 days training in mediation and engage in at least 10 hours of supervised mediation. Furthermore, they must also undertake 12 hours of mediation-education or training every 12 months.
Tertiary institutions globally offer units in mediation across a number of disciplines such as law, social science, business and the humanities. In Australia not all fields of mediation-work require academic qualifications, as some deal more with the practical skills rather than with theoretical knowledge: to this end membership-organizations such as LEADR provide training-courses to further the adoption and practice of mediation. Internationally the organisation CEDR takes a similar approach to mediator training.
No legislated national or international standards on the level of education which should apply to all mediation practitioner’s organizations exist. However, organisations such as the National Alternative Dispute Resolution Advisory Council (NADRAC) in Australia continue to advocate for a wide scope on such issues. Other systems apply in other jurisdictions such as Germany, which advocates a higher level of educational qualification for practitioners of mediation.
The application of a code of conduct to the practice of mediation becomes problematic — due in part to the diverse number and type of practitioners in the field. A tendency exists for professional societies to develop their own codes of conduct, which apply to their own members. Examples of this in Australia include the mediation codes of conduct developed by the Law Societies of South Australia and Western Australia and those developed by organisations such as Institute of Arbitrators & Mediators Australia (IAMA) and LEADR for use by their members. Other organizations such as the American Center for Conflict Resolution Institute ([www.accri.org]) have developed both classroom and distance learning courses which subscribe to its mission of promoting peace through education. The CPR/Georgetown Ethics Commission (www.cpradr.org), the Mediation Forum of the Union International des Avocats, and the European Commission have also promulgated codes of conduct for mediators.
Writers in the field of mediation normally espouse a code of conduct that mirrors the underlying principles of the mediation process. In this respect, some of the most common aspects of a mediators codes of conduct include:
Australia has no national accreditation system for ADR. However, following the National Mediation Conference in May 2006, the National Mediation Accreditation Standards system has apparently started to move to its implementation phase.
ADR practitioners recognize that mediators (as distinct from arbitrators or conciliators) need to be recognized as having professional accreditations the most. There are a range of organizations within Australia that do have extensive and comprehensive accreditations for mediators but people that use mediation are unsure as to what level of accreditation is required for the quality of service that they receive. Standards will tend to vary according to the specific mediation and the level of specificity that is desired. Due to the wide range of ADR processes that are conducted it would be very difficult to have a set of standards that could apply to all ADR processes, but standards should be developed for particular ADR processes
Clients need the assurance that mediators have some form of ongoing assessment and training throughout their careers. Mediators must satisfy different criteria to be eligible for a variety of mediator panels. Also, different mediator organizations have different ideals of what makes a good mediator which in turn reflects the training and accreditation of that particular organization. Selection processes for ADR practitioners are based on the needs of the service, but a problem is posed when organizations, such as the court want to refer a client to mediation and they usually have to rely on their in-house mediators or rely on word of mouth. There are inconsistent standards. A national accreditation system could very well enhance the quality and ethics of mediation and lead mediation to become more accountable. There is a need for a unified accreditation system for mediators across Australia to establish clarity and consistency.
After the claim was denied, the CFO met in mediation with the representative of the insurance company to try to work out a solution.
Mediation is a less expensive option than litigation and is a good first step to try and settle a dispute.
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This glossary post was last updated: 28th April, 2020 | 27 Views.