Mediation emphasises the responsibilities of the participants to make decisions that affect their lives, and it is therefore a self-empowering process (Folberg & Taylor, 1984). Mediation can be used in conflicts or disputes where those involved are unable to resolve matters or come to an agreement by themselves, and this can be related to a range of circumstances. For example, family dispute resolution, which is a form of mediation, may be used by a couple who have separated and are unable to agree on the living arrangements for their children. Mediation can also be useful in workplaces, such as when two staff members are in dispute in relation to a project or work-related matter, and are unable to reach an agreement on how to proceed.
The National Mediator Assessment Standards (NMAS) defines mediation as a process that “promotes the self-determination of participants and in which participants, with the support of a mediator:
A mediator does not evaluate or advise on the merits of, or determine the outcome of, disputes.”
These steps form a specific process that a mediator works through with the participants. It is this structured negotiation process that allows the participants to share their point of view and generate a range of options for discussion. By clarifying the interests and areas of disagreement, parties can brainstorm a number of different options that extend past what they were initially considering. Therefore, mediation can “expand the pie” by opening up more opportunities for resolution, with the aim of reaching an agreement that both participants can live with.
Using these principles, mediators create a supportive environment where participants can feel safe, comfortable and respected and therefore are able to contribute meaningfully in the process. It is important to note, that if participants do not have the capacity to participate effectively, for example if they feel uncomfortable or unsafe in a room with the other participant, mediation may not be appropriate.
One of the key aspects of mediation is the independence of the mediator. The mediator is not involved in making the decisions or determining the outcome, but rather they facilitate structured conversations to help the parties involved in the conflict to develop ideas and potential agreements that meet their interests. The mediator’s role is as a neutral third party who helps to manage the process and provide a safe environment for mediation to occur. The participants can raise their concerns and choose to make decisions, or choose not to make decisions. In this way, the participants have control over the outcome of the mediation process. This differs from the process of going to court, for example, where a judge makes the decisions and both participants must then follow this decision, whether it is suitable for them or not.
Mediation is one of the many processes that come under the banner of Alternative Dispute Resolution (ADR) processes. There are a number of other forms of ADR, which are detailed below.
Negotiation involves the people involved in the conflict discussing the conflict directly and trying to come to an agreement
Mediation involves an independent person (the mediator) facilitating a discussion for the people involved in the conflict, and supporting them come to a suitable agreement. The mediator is not involved in the decision-making. Those involved in the conflict have control over the outcome.
Conciliation is similar to mediation, however the independent person (the conciliator) may be able to provide some legal information or advice. Like mediators, conciliators do not take sides or make decisions.
A solicitor acting for each party negotiates an agreement on their behalf. Those involved in the conflict may or may not be present. Solicitors provide advice to their client, but the client makes the decisions about accepting any agreements.
Arbitration is usually a much more formal process than other forms of ADR. In arbitration, all those involved in the conflict present their point of view to an independent person (the arbitrator). The arbitrator then makes a decision on the dispute.
The litigation process involves all participants presenting their case in a court or tribunal, usually through their legal representation (the lawyer). A judge or tribunal member then makes a decision on the dispute, with the participants then required by law to follow the decision, unless it is successfully appealed.
The processes listed above become progressively more formal, structured and public, with the participants having less control over the outcome. For this reason, mediation can be a useful process to resolve disputes where participants wish to have input into the outcome but are unable to reach or negotiate an agreement independently. Mediation can also help to provide an opportunity for conversations and a dialogue between those involved in the dispute.
Relationships Australia Victoria (RAV) offers mediation and family dispute resolution through our centres in Ballarat, Berwick, Greensborough, Kew, Shepparton and Sunshine. For more information click here.
RAV also provides professional development workshops and accredited training on mediation and family dispute resolution. Courses include our five-day Mediation Training Short Course or our Graduate Diploma of Family Dispute Resolution.
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