Mediation Notes

Introduction

Mediation is a globally utilized method for resolving conflicts, applicable in various settings such as individual disputes, community disagreements, family issues, workplace conflicts, healthcare settings, and consumer disputes. It extends to the corporate sector and large-scale environmental conflicts, addressing issues from construction disputes to refugee rights, and is increasingly used in international disputes, exemplified by the Singapore Convention on Mediation. Mediation's versatility makes it applicable wherever conflict exists.

Mediation Beyond Conflict Resolution

Mediation is employed not only for conflict resolution but also for future decision-making and project planning. It aids in analyzing interests and evaluating alternatives, serving as a valuable tool for complex issues requiring focused conversation. It can function as a triage tool, streamlining dispute management and process referrals.

Mediators come from diverse professional fields like law, medicine, business, social science, and the arts, as well as various cultural and regional backgrounds. In Australia, mediators adapt their practices to suit the cultural needs of the communities they serve. Mediation processes can vary in duration, from hours to years, and mediators can work full-time, part-time, locally, regionally, nationally, or internationally.

Defining Mediation

Mediation is characterized by the intervention of a trained, impartial third party who assists parties in making their own decisions. Its flexibility allows it to evolve and find new applications. While legislation and reports in Australia and New Zealand offer definitions, they primarily emphasize its facilitative nature. Different jurisdictions employ various mediation approaches, mainly differing in the mediator's role. The absence of a clear legislative definition may lead to variations in mediation practices across different states and jurisdictions.

The timing of mediation and the involvement of different parties also influence the process. Research indicates regional differences in settlement preferences among lawyers, suggesting that mediation is partly shaped by the cultures in which it occurs. Definitions are also influenced by obligations related to confidentiality, admissibility, and participants' duties to act in good faith.

Mediation Models

Commentators have identified various mediation models, including settlement, facilitative, therapeutic, and evaluative approaches. In settlement mediation, the goal is to reach a compromise. Facilitative mediation aims to promote negotiation based on underlying needs and interests, rather than legal rights. Therapeutic mediation considers underlying causes of behavior, while evaluative mediation focuses on settlement according to legal rights. A mediation may transition between different modes, such as starting facilitative and becoming evaluative.

Some theories suggest a fifth category named narrative mediation, involving an interpretive and analytical response. Effective mediators should be adaptable, shifting between models as needed. Theoretical approaches to mediation can be derived from the core values of the theorists, and flexibility in definitions may be appropriate if there are agreed values supported in the processes.

Common Definition of Mediation

The National Alternative Dispute Resolution Advisory Council (NADRAC) supports a facilitative, non-advisory model. NADRAC prefers the term mediation for processes where the mediator lacks advisory or determinative roles regarding the dispute's content or outcome but may advise on or determine the mediation process. In practice, the term is used even when advice is given on the substance of the dispute, which may be addressed through regulations or codes of practice.

The consumer perspective in understanding the mediation process is important. The National Mediator Accreditation System (NMAS) considers processes with advisory components as blended and requires disputants' consent for their use. ADR practitioners need appropriate skills, qualifications, and insurance for blended models. Facilitative and evaluative mediation are two main forms, influenced by theoretical debates in the U.S., where a common definition is lacking. The mediator’s role is purely facilitative in most Australian jurisdictions, and the mediator should not influence the outcome.

In some jurisdictions, mediators may still make recommendations and evaluate the dispute, not complying with NMAS standards. The Federal Court of Australia acknowledges a range of processes can be used. Even in blended processes, creative options and interest-based negotiation may be explored. The timing and nature of ADR practitioner interventions become more relevant, especially concerning mediator neutrality. Non-lawyer mediators often focus on facilitative interventions due to liability risks associated with offering advice. Recent discussions consider the nature of all interventions and enable analysis from multiple perspectives.

Many practitioners distinguish between reality-testing questions and suggesting likely litigation outcomes. Lawyers may prioritize legal rights over broader issues, leading to a more evaluative approach with directive questioning. Figure 3.1 sets out relevant difference in mediation approaches. The questioning approach should be "elicitive", not directive.

Core Characteristics

Approaches to mediation are categorized as process-oriented (facilitative) or substance-oriented (evaluative). In a process-oriented approach, the parties provide the solution, and the mediator facilitates. Mediation can be described as neutral, relational, transformative, analytic, or pressing, acknowledging mediator pressure and the focus on interaction. The mediator does not require subject matter knowledge. Process-oriented mediation can be facilitative, settlement-focused, transformative, narrative, or therapeutic.

The 2007 NMAS Standards stated that mediators have no advisory or determinative role, which the 2015 revision excludes. Self-determination may be narrower than empowerment, requiring support for the participant's voice and incorporating procedural justice. The revised NMAS Standards notes that mediation promotes participants' self-determination, but the earlier standards provided a broader focus on self-determination. Self-determination and empowerment are critical values, but there is little research, partly because evaluations focus on cost and time savings.

Substance-Oriented Mediation

Substance-oriented mediation may be evaluation, conferencing, or conciliation. Participants focus on persuading the ADR practitioner to support their perspective. The ADR practitioner is an authority figure who evaluates the dispute and offers recommendations. The basic philosophy of mediation requires empowerment, so substance-oriented mediation cannot be defined as mediation.

There are liability issues for practitioners who provide outcome views. Practitioners are more likely to be sued if a party settles following incorrect advice. An adviceless mediator cannot be sued for incorrect advice as they have not offered nay. Substance-oriented mediation is also known as "muscle", "rhino", or "rambo" mediation. It may narrowly define issues by reference to legal rights rather than interests.

Transformative Mediation

Transformative mediation emphasizes the process' nature, not problem-solving. It is used in community conflict, victim-offender conferencing, and family conflict. The mediator fosters empowerment and recognition. The transformative model requires the mediator not to have or use subject matter expertise and provides that mediation is a safe haven and the participants are the real stars. Empowerment is at the heart of the process.

The New South Wales Community Justice Centre mediation model has shifted to facilitation with agenda setting. The transformative form does not focus on resolution but changes in group dynamics and can lead to social change. Part of the process may be therapeutic mediation when professional therapeutic techniques are used to encourage communication and behavioral techniques. It's been explored with the United States Postal Service(USPS) REDRESS program

The USPS offered transformative mediations to EEO complainants and demonstrated satisfaction with the program in exit surveys. Participants in transformative mediation tend to become more open and confident, and productive engagement may occur. Participants are also more likely to establish personal connections and understand more about themselves and each other.

Criticism of transformative mediation states that objectives may not be well articulated, and it's difficult to determine if someone has become skilled at dealing with conflict. There is criticism in what is perceived to be a lack of theoretical underpinning.

Other Mediation Models

Mediation models vary in other ways, especially in the family sector. An “impasse” model of mediation is used for complex post-separation disputes, involving factors like personality disorders and family involvement. The phases of the process include a pre-negotiation counseling phase, a negotiation or conflict resolution phase, and an implementation phase. In these models, counselor-mediators combine therapeutic and counselling approaches with a primary goal of getting parents to focus on the needs of their children.

Shuttle meditation involves the mediator moving between parties conveying options and ideas and is useful where violence or threatened violence has occurred between the parties involved. Narrative Mediation suggests that people make sense of events in their lives by organizing them in a story form and focus on deconstruction then externalization of stories. As online resolution has expanded, there is an interest in online mediation with AI. The increased usage of AI will be relevant to generating options and alternatives and means newer models of mediation will allow for tech referral.

National Mediation Accreditation System Standards

The differences in mediation styles have been reflected in the NMAS which has a system of accreditation and practice standards. Section 2 of the standards define the mediation process through the lens of the application of knowledge, skills and ethical principles so practitioners can make their decisions among the parties in conflict. Section 2 also notes that mediation is a process that promotes participants in the understanding of their own needs, issues and underlying needs and consider the alternatives to these, but also evaluates the options to ensure that they can reach and make the correct decisions.

In crafting the description used in 2008, it was clear that most mediators considered the advisory scope to be the major influence. There were some differences that related to mediation disciplines. The strongest opposition to a non-advisory process was driven by lawyers. This then creates blended processes which leads to additional accreditation requirements.

When a mediator adopts an advisory approach, the focus shifts from the negotiation between parties to the mediator himself. The lack of negotiation between the parties is more likely to create legal liability issues and disempower the parties from finding a conclusion themselves. This creates a process in which their is no agreement between the parties.

Mediation Models

Mediation models have been formulated by various training institutions and professional bodies, and one of the most widely used examples has been adopted from the Law Society of New South Wales. The stages found in this process can be generally described as:

1. Introductory Stage
2. Description of Issues by the Participants
3. Summary and reflection of the participants points of view. Summarization of the agenda
4. Discussion and Exploration of the agenda items
5. Private meetings
6. Classification and discussion of options
7. Evaluation of options and decision-making

One of the process differences in training models relates to whether the mediator summarizes after the statements by each party, or summarizing only when all parties have responded. Additionally in workplace mediations it can be appropriate for the mediator to spend greater periods of time in separate meetings prior to bringing the parties into a mediation. In the transformative and narrative approaches, a more fluid response is undertaken to ensure that intervention and tracking and interventions used by the mediator are similar.

The roles of lawyers and others can vary greatly according to different processes and different experience. There have been a wide range of studies which have taken a look at the impacts that such processes can have on clients involved in settlement and the fairness or lack-thereof. To ensure adequate engagement, parties need to be involved in agenda setting and exploration. Additionally party participation helps satisfaction.

Main Descriptions: Mediation

Various Australian Standards have described mediation. The AS4608-2004 refers to the NADRAC definition and notes the dispute resolution practitioners lack the advisory role and is used voluntarily, under a court order, or is a subject to existing contractual agreement. These agreements are meant to help ensure that each person has their own needs, desires and issues addressed appropriately.

Neutrality and Impartiality

Most definitions and descriptions of mediation no longer speak of neutrality, but rather impartially which is to be free from favouritism. Practitioners can now intervene to ensure that fairness and imbalances are addressed. Ultimately conflict does not require a completely neutral practitioner.

Neutrality is more intact in transformative processes. However these practitioners need to be empathetic as well to ensure greater effectiveness of their roles.

Issues that practitioners need to identify and disclose is whether there is any existing relation. Responsibility needs to be taken by the practitioner in ensuring the integrity of both themselves and their clients. Practitioners also need to determine how to balance and maintain any imbalances of power as well.

Previously the NADRAC has raised issues related to diversity and fair treatment about gender ethnicity power differences etc. Mediator neutrality is a situatued concept which defies any universal or absolute meaning by Bogdanoski T. Douglas and Sager and Field note that Lawyers and Confreres should strive for some level of partiality.

Fair and Ethical Practices NMAS

The NMAS Standards abandon the term neutrality and adopt the term impariality. A mediator must ensure both are maintained through a sense that is impartial, free of act and mission. Additionally, the professionals need to conduct themselves in any arena in which ethical and professional practice is paramount.

Power, Inequality and Mediator Interventions

Related to impartiality are issues of inequality. Often who comes to the table informs the ability to impact on the negotiation. Issues related to cultural diversity are a large concern.

It is also important to note that all parties that come to a negotiation, whether in the role, all people participating in mediation carry cultural biases with them. Additionally it is sometimes of concern that mediator's operate in such a way that mask's the social conflict. It is not for the mediators to alter the dispute.

There is no real power imbalance that is not associated with abuse. It is in this light that we must strive for mediators to manage situations appropriately. Under particular circumstances and at particular times, the power relations can change inside the space and can be influenced by various dynamics. All situations need to be maintained with procedural fairness.

Fairness National Mediation Accreditation System Standards

The NMAS standards place certain pressures on any party in engaging negotiations with another for there to be informed context and the ability to work and act under free practice. There needs to be an overall sense of equity and impartiality with parties in the negotiations. Section 7 of the NMAS requires:

1. Agreements are able to reached freely, and voluntarily
2. Participants have an opportunity to speak and be hurt
3. Participants need to have time and opportunity to see advice
4. Support participants in their issues with the process

Mediated Outcomes

Fairness needs to be in the eye of the beholder. All that should matter is that there is both process and outcome. Although hard to measure there can be a dichotomy between mediation processes and adjudicatory procedures. As long as people have been treated fairly, often they will respond in a well based and equitable. Ultimately, a well based mediation process will increase the likelihood of a well thought out and ethical response.

Environmental mediation

Often outcome does not show all relevant interests due to the nature of the interests being represented and the specific power imbalances that lead to lack of oversight. Suggesting a need for more ethical practice to take affect.

Family Sector Mediation

In the family sector family dispute resolution (FDR), is often implemented. FDB is defined as any role which an independent practioner. As seen in some cases (ie with the focus on child-centric mediation focus as the role to provide certain advisory duties.

The FDR helps keep the kids at the forefront of their thinking. These specific tools help to promote what is in the best of interests within these children. The model includes a team (made up of a team of both psychological professionals and also family practitioners. These types of model interventions are more likely to be more durable practices overall. McIntosh notes that a more developmental balance is achieved through certain specific processes.

Role of Lawyers in Mediation Process

Various lawyers have many concerns when engaging in negotiations. These points of concern can be categorized as:

1. In the engagement of lawyers can disempower the disputants
2. That engaging lawyers can cause emphasis to be placed on the rights given and less on the interests and the tone turns more adversarial
3. Lawyers are not able to participate effectively and can adopt adversarial behavior to an extreme
4. The lack of good skills in training can cause there negotiations skills to be difficult to use.

Lawyers can also assist in certain ways that are not intended, like bringing forward alternate options for certain issues and assisting as balance against power imbalances. However certain lawyers take-over negotiations and that the exclusion of other parties can be an often occurrence in a wide array of circles.

However, mediators have intervention measures to support and encourage participation from Lawyers. Additionally some lawyers can just have negative impact despite best efforts to the inclusion of a beneficial negotiation environment.

Ultimately issues with conflicts of interest and authority should be reviewed and addressed for a better more equitable environment.

Presence and Mediator Qualities

Mediation involves the intergration integration of a wide range of qualities. Ultimately all comes down to the effective use of the mediator's interventions, while maintaining Authenticity.

The main characteristics which should be displayed are outlined as:

A. Respect, Authority and Authentication.
B. Emotional intelligence and empathy. The ability to have high awareness of self, and awareness of surrounding individuals.
C. Intuition, artistic skill and being Curious. The process involves constant artistic review coupled with the effective awareness of individual dynamics and how this impacts on the whole group.

Other main components require the necessity to have not only the personal skills but the abilities of good practice to maintain ethical processes.

Conferencing

Conferencing has been successfully added to the tool-belt of restorative justice, and have allowed existing criminal justice systems to take hold and allow programs to be worked as the augmentations to a functional and healthy process. These programs aim to reach the discussion of various effects.

However, not all processes and individuals that engage in said practices maintain the high ethical base that should be maintained.

It is in that NADRAC has released a model for the understanding engagement and the impacts as to how they can occur. But the effectiveness needs to be further developed with an overall scope that understands not just the nature of individual needs but also individual circumstances.

Research About Facilitative Processes

There is an extensive level of material, both written and non written on the processes and impacts of mediation. These efforts have helped to create a better understanding as to the methodologies of all such practices. A goal of this area should be create positive environments with an increase on emphasis of more positive outcomes, and helping to eliminate negative effects. The key to success would be to increase focus on the needs of all parties, help all persons increase their ethical base, review concerns and develop solutions.