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Mediation
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.
Mediation and Conciliation
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 facilitative: 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. |
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