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Chapter 2:

Mediation Theory

Mediation is an alternative dispute resolution process in which a third party helps the parties in dispute resolve the situation by coming to their own solutions. Mediation is not a new concept. However, a new surge of interest in its use has brought mediation to the fore of modern dispute resolution practice. Increasingly, mediation is being used in an array of social and legal venues. There are those who believe mediation presents a powerful opportunity to express and achieve a higher vision of human life. The more dominant approach, however, emphasizes mediation’s capacity for finding solutions that are expedient, less costly and more satisfying than formal adjudicative processes. Whichever perspective is taken, it is generally agreed that mediation is both diverse and pluralistic and that no one approach or ideology represents the “full story” of mediation. Recent thinking suggests a more integrated and inclusive view of mediation that would give equal weight to the importance of relationships, community, culture, resolution, and change.

History

The history of mediation is entwined with the core values of Canadian society, most notably justice, self-determination, and the acceptance of humans as rational, problem-solving beings. Rooted in social activistism, early proponents of mediation sought to assist individuals and groups to use non-violent and more effective problem-solving strategies, the hope being that informalism would return justice to the community. While mediation in labour disputes has been long used,⁷ it was not until the 1960’s that mediation realized wider acclaim in the realms of community, family, public policy, and legal contexts. Increasingly, mediators are being called upon to resolve disputes about child custody, contracts, environmental concerns, neighborhood problems, and playground bullying.

Mediation is one of the oldest and most common forms of conflict resolution.

Mediation is one of the oldest and most common forms of conflict resolution. Its current practice has evolved from that which existed in other countries and other times. For example, the Bible refers to Jesus as a mediator between God and man. Jewish rabbinical courts and rabbis in Europe were vital in mediating disputes (Moore, 1986). In ancient China, mediation was the principle means of resolving disputes. It has a rich history in Japanese law and customs. In parts of Africa the moot, or neighbourhood meeting, has long provided an informal mechanism for resolving interpersonal disputes (Folberg and Taylor, 1984). Early Native American tribal cultures, including Navahos and Lakotas, used mediation to resolve disputes (Garrett, 1994). Legal anthropologists, convinced of the advantages of informalism based on the experience of comrades courts in Russia, people’s courts in China, and community courts in South America, argued that these systems demonstrated both the “naturalness” and the “universality” of informal dispute processing (Auerbach, 1983). Extended families, elders, clan members, and religious leaders have all offered wisdom, precedent, and models to assist in the resolution of social conflict. With the rise of nation-states, mediators have taken on new roles as secular diplomatic intermediaries.

Much of what is known about the historical roots of mediation tells us that it has grown out of strong moral and social concerns. Early practitioners of the modern Western era were attracted to mediation for the betterment of society, albeit with differing motives. Social activists were interested in community empowerment. Legal reformers sought legal equality and access to justice. Church groups (especially the Mennonites and Quakers) were interested in reconciliation and restoration of harmony. Peace activists were drawn to collaborative problem-solving by their concern about nuclear war and global destruction.

Early mediation programs in Canada evolved from court-based programs that were ideologically linked to restorative justice. The first Victim Offender Reconciliation Program (VORP) was started in 1974 in Kitchener, Ontario, and by the late seventies, court-based mediation programs existed in Halifax, Quebec City, Montreal, Winnipeg, and Regina (Lajeunesse and Woods, 1987). One of the first community-based mediation programs, now called Community Justice Initiatives, was established in 1978 by the Central Mennonite Committee in Ontario. Community mediation was dominated by a therapeutic model which emphasized consensus rather than coercion, integration rather than exclusion, and mutually satisfying outcomes rather than strict observation of legal rules. Harrington and Merry (1988) identified three analytically distinguishable streams within the community mediation movement: the delivery of dispute resolution services, personal growth and development, and social transformation. The delivery of service stream saw the courts as inefficient, inaccessible and inappropriate for many kinds of disputes, and had as a primary interest the rationalizing, streamlining, and fine-tuning of the judicial system. The personal growth stream envisioned consensual dispute settlement empowering individuals to take greater control over their lives by enhancing their personal skills for dealing with conflict. The social transformation stream centered on community empowerment through decentralized decision-making, deprofessionalized dispute resolvers, and local rather than state-controlled systems. Each stream held different political interests, developed different organizational models, and was active in different spheres. In the end, Harrington and Merry believe the service delivery stream won out over the other two.

The use of mediation has come to be regarded as a legitimate means to deal with many social and legal conflicts in Western society.

In a relatively short period of time, the use of mediation has come to be regarded as a legitimate means to deal with many social and legal conflicts in Western society. Mediation now commands the attention of scholars, researchers, and legislators. New journals and books appear on the bookstands on a regular basis. Professional associations boast large memberships. Universities offer graduate and undergraduate degree programs in conflict resolution and mediation and professional conferences abound. Corporations and individuals from a variety of occupations have responded to the growing demand for non-adversarial dispute resolution.

Four “stories” characterize the mediation movement – the Satisfaction Story, the Social Justice Story, the Oppression Story, and the Transformation Story (Bush and Folger, 1994). According to the Satisfaction Story, mediation facilitates collaborative problem-solving rather than adversarial distributive bargaining. It is seen as a powerful tool for satisfying human needs and has led to more efficient use of private and public dispute resolution resources. The Social Justice Story tells of mediation helping to form effective grassroots community structures by reducing dependency on professionals and empowering individuals to participate in civic life. According to the Transformation Story, participation in mediation helps individuals gain a greater sense of self-respect, self-reliance, and self-confidence. It strengthens their inherent capacity to acknowledge their concern for each other as human beings and promotes individual moral development. Finally, the Oppression Story tells the tale of mediation that produces outcomes which favour the stronger parties by ignoring or undermining the efforts of weaker parties. This version of mediation sees it as neutralizing social justice gains by helping to reestablish the privilege of the stronger class and perpetuating the oppression of the already disadvantaged.

Mediation can be defined as a process of assisted negotiation where the mediator facilitates the process and the parties determine the outcome.

Defining Mediation

The word mediation is derived from the Latin words medi or medio which means middle. In its simplest form, mediation is assisted negotiation. It provides third-party assistance to individuals trying to reach agreement in a controversy.

I define mediation as a form of assisted negotiation where an impartial person facilitates the negotiation process while the parties determine the outcome. The goal is to help parties gain insight into the cares and concerns that underlie the conflict situation and that are affecting their lives and the lives of others. This insight enables parties to reach consensual decisions that accommodate their needs. It is a self-empowering process that emphasizes self-determination and interconnectedness.

The central quality of mediation is said to be:

its capacity to reorient the parties towards each other, not by imposing rules on them, but by helping them to achieve a new and shared perception of their relationship, a perception that will redirect their attitudes and disposition toward one another (Fuller, 1971:325).

Edward Kruk sets out a number of key principles in his definition of mediation:

[Mediation is] a collaborative conflict resolution process in which two or more parties in dispute are assisted in their negotiation by a neutral and impartial third party and empowered to voluntarily reach their own mutually acceptable settlement of the issues in dispute. The mediators structure and facilitate the process by which the parties make their own decisions and determine the outcome, in a way that satisfies the interests of all parties in the dispute (1997:4).

Following from Kruk’s definition, the core components of mediation are that:

it is a process with defined stages;

it is used in situations where there is a disagreement between two or more parties;

through collaboration, solutions reached in mediation benefit everyone;

the mediator remains neutral and impartial and has no vested interest in outcomes;

parties are empowered to make their own decisions; and

parties enter into mediation voluntarily, without coercion or control.

Mediation is eclectic and multi-disciplinary. Its development, and now its study, have been undertaken in the fields of anthropology, communications, economics, political science, psychology, law, management, and industrial and international relations. Mediation is used in a variety of forums including the courts, business, schools and institutions of higher education, neigbourhoods, families, and organizations. Mediation is used to resolve public policy and environmental issues, landlord-tenant and congregational conflicts, farmer-lender negotiations, international and cross-cultural conflicts, and medical malpractice suits. Although it could be more widely used, mediation is not a panacea. It should not be used when one party appears to be more interested in winning than collaborating, when the interests of one party cannot be fully represented, or, when one party would be placed in danger through his or her participation. Mediation should also not be used as a substitute for therapy or counseling, as a coercive means to an end, as a substitute for the proper exercise of authority, when competent mediators are unavailable, when power should not – or cannot – be balanced, or, when the goal is repressive. A useful caveat to remember is that “parties who participate in mediation should never leave worse off than when they came”. Knowing when to use mediation and for what purpose is critical to the successful resolution of disputes.

The Process of Mediation

Mediation processes differ widely. Common to most is that outcomes are consensual, rather than imposed, and that solutions are fashioned by the parties themselves through a process of direct negotiation. It is important that mediation be flexible and able to meet the needs of particular individuals and situations. This means that the more commonly used Western model of mediation described in this book may not always be appropriate, especially in cases involving cross-cultural and intercultural disputes. This has become evident in recent research which shows that people of colour fare poorly in comparison to their white counterparts in mediation, except in cases where the mediators are of the same ethnic group (LeBaron, 1997). Mediators must be both flexible and skilled enough to recognize when the mediation process requires adaptation.

Mediation has three distinct phases. It has a beginning, where the issues and key parties to the conflict are identified; a middle, where the needs and concerns underlying parties’ demands and positions regarding the issues are explored; and an end, where options to resolve the issues and meet underlying needs are generated, evaluated, and agreed upon. Prior to beginning a mediation it is the general practice to conduct an intake or pre-mediation assessment to determine if mediation is appropriate and to educate the parties about the process.