THE NATURE OF MEDIATION
Nature of mediation
Definition – facilitated negotiation where a TP is invited into the negotiation to assist the parties.
Consensual, TP neutral, impartial and non-aligned with no decision-making authority, party control
substance, mediator controls process.
Mediator manages the negotiation process, creates appropriate environment for resolution, encourages
communication and info exchange, assists with discovering interests, searching for options and
assessing possibilities for agreement.
Why mediate? To overcome barriers in negotiation such as reactive devaluation, emotions,
communication, impasse, adds structure to negotiation process, helps enhance/maintain relationships,
permits creative solutions, private, confidential to parties.
Overview of literature
Mediation seen as way to get fast, efficient justice and deals with problem of overburdened courts.
Way of increasing access to justice.
Genn & Roberts – mediation is a vehicle for settlement.
Kolb – parties mediate in order to empower themselves. Empowerment is defined as belief in free
will.
Bush & Folger – transformative mediation. Mediation offers empowerment and recognition. Enables
parties to understand, consider and acknowledge other side’s views + perspectives. Community model
mediation works on premise of direct engagement with the parties. Parties listen to each other and
repeat what the other has said. As soon as recognition occurs, movement towards agreement is quick.
Transformative med was criticised as it was presenting med as spiritual/religious and little data
supported its proposition.
De Girolamo – mediator can use some tools for empowerment and recognition in order to assist
parties to get to settlement.
Roberts & Palmer, Fuller – mediation enhances community by promoting harmony.
Sources of mediator authority
Institutionalisation e.g. rules of court, contractual obligation, mediator reputation/expertise,
mediator’s prior relationships with parties.
Mediator rapport with parties – mediator is invited into dispute by parties. Relationship is built with
parties. Mediators build rapport through casual conversation which can change the way parties look at
the mediator.
Schelling – mediator’s authority similar to a driver stepping into traffic to control it and other drivers
allow this.
Roberts & Palmer – mediator is a ‘superior’, ‘being there’, ‘the outsider’ or a professional.
