Mediation

Mediation is a process designed to manage and resolve conflicts between two or more parties. As a facilitated negotiation, mediation provides the parties with the opportunity to identify their interests and needs, present their ideas for possible solutions, explore those options and alternatives, and come to collaborative solutions. Mediation is facilitated by a mediator, whose role is to guide the parties through the process without determining the outcome. Mediation is thus a conflict management and resolution process designed to provide parties with an alternative to more formal, time-consuming, and potentially expensive litigation. In mediation, the parties retain control over the outcome of their case. They may resolve all issues, some issues, or none of the issues (an impasse). Mediation is voluntary and confidential. Courts may order parties to appear at mediation, but they cannot order the parties to participate and resolve their issues.

Mediation has been used around the globe in many settings. Indigenous peoples using mediation typically have mediators who are elders or well-respected community leaders. These mediators are familiar with the parties, their circumstances and context, and the community. This is in stark contrast with the models of mediation used in the West, where the mediator is a neutral third party, unknown to the parties prior to the mediation experience. Differences in the style of mediation also exist. In Western models, the party bringing the action is invited to speak first, whereas in indigenous mediation there are cultural norms that control. These norms may include inviting an older party to speak first.

Mediation has enjoyed increased popularity in the West in the past 30 years, whether in local matters such as community disputes, including conflict between neighbors, or as an alternative to the full litigation process in family, commercial, and other civil matters. Some states provide certification for mediators as well as qualifications, guidelines, policies, continuing education requirements, and remedies for inappropriate mediator behavior and action.

As mediation became an accepted process for managing and resolving conflict, various mediation models evolved. The most common approaches are facilitative models, which encourage the parties to exercise their autonomy over the issues and the resolution. Several of these facilitative approaches include problem solving, transformative, and narrative. Using these approaches, mediators invite the parties to identify the issues, explore various options and alternatives, and determine which if any of these options would best suit their needs.

Mediation sessions begin with the mediator's opening statement, which provides an introduction concerning each person's role, the process, and the ground rules for conduct. Occasionally, the mediator may ask to have a “caucus.” A caucus enables the mediator to speak privately with one party. What is discussed in a caucus is private and is not discussed with the other party without consent.

At the conclusion of the mediation, any resolved issues will be formalized in the mediation agreement, which may become part of a court order and thus enforceable under law.