Mediation

Mediation is a type of intervention meant to reduce or eliminate conflict among persons or parties who have opposing desires in a situation. For example, a family mediator may assist a couple going through a divorce to reach an agreement on the terms of the divorce in areas such as custody of children, settlement of property, and so on. More technically, mediation is the intervention by a third party who is acceptable to the disagreeing parties, who is impartial, and who is neutral (having no relationship with the disagreeing parties). Neutrality also means that the mediator will not gain personal favors or benefits from one of the parties for assisting with mediation.

By definition, mediation is part of negotiation. That means that mediation occurs during a process in which two or more people or parties are discussing their differences and attempting to reach a solution on one or more areas of disagreement. Mediation, therefore, is an extension of negotiation with the addition of a third, neutral party in the negotiation discussions. The assumption behind the addition of the mediator is that the third party will be able to influence the relationship between the two disagreeing parties in such a way as to help them settle the disagreement. The mediator might, for example, balance a power differential, influence the behavior of one of the parties, create a more effective problem-solving process, or create a more facilitative atmosphere during the discussions.

The mediator does not have the power to make a final decision in the disagreement. A judge or an arbitrator may be designated by law or procedure to make a final decision in favor of one or the other party or partially favoring both. In contrast, a mediator assists the parties in arriving at a mutually acceptable solution that maximizes each party’s interest.

Mediation has gained favor in recent years as a method of conflict resolution, because it offers several benefits. When compared to litigation, mediation can result in quicker and less expensive decisions. If completed successfully, mediation, by definition, results in a decision that maximizes each party’s interest and thus should be more satisfactory to both parties than a decision arrived at by a judge or arbitrator. Mediation can consider a variety of issues between parties, including ones not typically considered in courts. Last, and of interest to counselors, mediation can teach the parties more effective skills of negotiation and problem solving, which can be applied in future disputes.

Mediation proceeds along a series of stages. These stages begin with initial contacts with the parties to the dispute and continue through assisting the parties in selecting a strategy to work with during mediation, collecting background information, defining the issues and setting the agenda, generating options for the agreement, conducting final negotiations, and achieving a settlement. Within each of these stages are various tasks for mediators and parties. For example, during initial contacts with the parties, the mediator will be working to prepare the parties to work together cooperatively, defusing negative emotions resulting from previously unsuccessful negotiations, building trust, clarifying expectations, and ensuring clear communication.

There are three terms that are central concepts for mediation: issues, interests, and positions. Issues are the topics or problems that the mediator and the parties will focus on during their discussion. For example, divorcing parents may identify issues of child support, custody, and spousal relocation. A community that is divided over location of low-income housing may identify issues of distribution versus proximity, distribution among schools, and closeness to appropriate services.

Interests are the needs that each party wishes to satisfy and thus are much less easily communicated than issues. For example, in a divorce case, a husband may have a need to have continuing communication with his children even though his wife may be awarded custody. Other interests, such as having one’s point of view heard fully, achieving a cooperative solution, avoiding emotional blow-ups that endanger future relations, and feeling respected during the negotiation process, are ones that each party may feel comfortable discussing with the mediator but not with the opposing party. However, the mediation must meet these needs in order to be successful.

Positions are proposals or ideas of solutions that either party is putting forward to meet their interests and needs. For example, with divorcing parents, a position is “I want joint custody.” Another position is “I want the children all summer, because you will be the primary custodial parent.” In a community struggling over low-income housing location, one position might be “We want all this housing to be located in one area, because distributing such housing around town will lower property values.” Another position might be “Our community is a caring community, and every neighborhood should have a certain number of low-income housing units.” Because positions are framed from each party’s view, they are usually going to be one-sided and favor one party over the other.

The mediator’s task, therefore, is to reframe positions so that both parties move from bargaining over positions to discussing interests. As an example, a mediator might ask why a certain position (e.g., joint custody) is important for the party. Redefining the problem as one in which the solution needs to satisfy the interests of both parties, rather than the positions, is another way for the mediator to move from positional bargaining to mediation. Reframing the mediation process from arguing over positions to discussing and considering needs and interests is critical to the success of the mediation. Most likely, the previous negotiations have already exhausted the discussion of the positions, and thus the mediator needs to exercise certain skills to move the parties’ discussions into new ground.

At the conclusion of the mediation, the mediator plays a critical role. Once settlement options have been discussed, the mediator will carry out many tasks. One task is that of testing reality for both parties: Will this settlement meet your needs and interests? Another task is helping both parties consider long-term as well as short-term impacts of the settlement options. A third task is for mediators to assist the parties in comparing settlement options to other alternatives.

Mediators typically have received specialized training. Counselors might consider whether learning mediation skills and adding mediation to their skill set is a way of expanding their practice and invigorating their typical work. Many of the microskills that a counselor is already effectively using—empathic communication, recognizing feelings, relabeling, reframing, containing difficult client emotion—are ones that are essential to successful mediation.

References:

  1. Coltri, L. S. (2004). Conflict diagnosis and alternative dispute resolution. Upper Saddle River, NJ: Prentice Hall.
  2. Moore, C. W. (1996). The mediation process: Practical strategies for resolving conflict (2nd ed.). San Francisco: Jossey-Bass.
  3. Roberts, M. (2007). Developing the craft of mediation. Philadelphia, PA: Kingsley.

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