Meditation has a long, if informal, history. Examples can be cited from ancient Greece and the Bible and during early Chinese dynasties and the Persian Empire. In modern international relations, mediation first received explicit recognition during a conference held in The Hague in 1899.
What is mediation?
What is mediation?
Mediation is a way of resolving conflicts where two or more parties decide to reach an agreement with a support of a third, neutral party that guides them through the process.
Mediator is not a judge, but rather a facilitator – who helps the parties to communicate and find common grounds. The final agreement is solely the result of decisions and needs of the parties to the conflict. And if agreed upon – it can be equally binding as the court’s decision.
There are several definitions of mediation present in EU law or political science:
1. EU law
a structured process, however named or referred to, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator.
This process may be initiated by the parties or suggested or ordered by a court or prescribed by the law of a Member State. It includes mediation conducted by a judge who is not responsible for any judicial proceedings concerning the dispute in question. It excludes attempts made by the court or the judge seised to settle a dispute in the course of judicial proceedings concerning the dispute in question.
2. political science
a voluntary, informal, non-binding process undertaken with an external party that fosters the settlement of differences or demands between directly invested parties. Mediators often have a general interest in the resolution of a given conflict or dispute, but theoretically they are able to operate neutrally and objectively. Lacking the authority impose judgements, conditions, or resolutions, such facilitators aim to transform the dynamics of the conflict situation by introducing new relevant knowledge or information, especially regarding the negotiation process between the disputants, and by revealing common interests and suggesting possible directions towards settlement.
The process is usually initiated by the intended external mediator—such as an international organisation, government, or non-governmental organisation—or by the relatively weaker party of the conflict. Mediators often spend time with each party to the conflict through what has come to be known as ‘shuttle diplomacy’, or ‘caucusing’, especially when the parties are unwilling to meet each other or joint meetings are not leading to progress.
There are other ways or resolving conflicts similar to Mediation, such as: conciliation, dispute boards, facilitated negotiations, arbitration etc. Together, they are called Alternative Dispute Resolution (ADR).
5 Principles of Mediation:
Mediation is a rather informal process but is governed by five main principles:
1. Voluntary participation – free consent of the parties
Participation in mediation is always voluntary and depends solely on the consent of the parties. You cannot be forced to mediate – you can always refuse or withdraw from the process at any moment. The core concept of mediation is based on the fact that the final agreement is reached by the parties according to their needs and free will. If there is no agreement to mediate, there will be no final agreement neither.
Mediator must at all times remain impartial to the parties to the conflict and ensure that mediation is conducted in a fair and equal way. Mediator cannot have any private connections with the parties and has to ensure that he prevents any manipulative, threatening or intimidating behaviours. It is up to the person of a mediator to guarantee that he creates a safe and supportive environment for mediation – and the trust begins with impartiality.
It is not enough to be impartial to the parties of the conflict –mediator must also remain neutral to its subject. Mediator should not have any interest in the final result of the mediation – he should not impose any final solution or influence the participants to adopt his ideas. It is up to the parties alone to decide what will be the final outcome of the process.
If mediation is supposed to work, all of its elements should be acceptable by the parties. That includes also the person of mediator. He should be accepted by the participants and gain their trust. If they reject him, it is necessary to change the person of mediator. Also the final outcome of mediation must be accepted by the parties – as long as they don’t reach the final settlement, there can be no final agreement between them.
Mediation is completely confidential – and this pretty much sums up it all. Mediator will never share outside anything he learned during mediation. That includes also a court – no information gained during the process of mediation can be later used as an evidence in court. Mediator will also not disclose any information he obtained from one party to the other – only the parties to the conflict decide what they want to share with each other
Many mediation institutions create their own lists of principles and rules of mediation that are even more comprehensive than the ones above.
Do you want to learn more about how mediation works in practice?
Take a look on the work of Centre for Effective Dispute Resolution (CEDR) from London that provides mediation services all around the world and is our Expert Adviser: www.cedr.com
For more cohesive look on mediation and Alternative Dispute Resolution check out our ADR Dictionary where you will learn what are the other ways of resolving conflicts that are based on similar principles as mediation.