About Us- What Is Mediation?

Mediation is a conference between two or more disputing parties moderated by a third party neutral in effort to resolve the dispute to the satisfaction of those involved.

WHAT CASES ARE TYPICALLY MEDIATED?

  • Employment
  • Discrimination
  • Family
  • Personal Injury
  • Insurance
  • Business and Community
  • Human Resources
  • Probate
  • Divorce

Applications of Mediation Encompass:

Juvenile Criminal Justice System for non-violent offenders? Under supervision of criminal justice system caseworkers, community volunteers conduct victim-offender mediation to help kids get back on the right track.

Family Counseling? Helps divorcing individuals face the expected changes in roles and duties with emotional balance.

Part of the Civil Court System? Parties in lawsuits are aided in settlement negotiations aimed at helping them determine their own best interest.

Alternative to the Formal Justice System? Mediation as part of community action and conflict resolution where volunteers aid in resolving conflicts and problems that otherwise would end up in small claims court. Often conducted in participation with the Better Business Bureau or Community Alternative Dispute Resolution Centers.

Labor conflict Resolution? Process to find to end conflicts and improve feelings in the workplace.

Institutional Mediation? A form of human resources management to resolve conflict and improve communication between those served and the institution. In large hospitals, churches and other diverse organizations, mediation is a method of ensuring communication address rather than ignore problems.

Diplomatic Mediation? Resolution of armed conflict by political means. Undertaken to prevent countries from going to war or to help countries at war find peace.

Something Better? Per Texas Law Review, A Glass Half Full at Vol. 73:1594 "Mediation is more accessible and understandable to the layperson. It is less adversarial, expensive, and time-consuming than litigation and is more likely to produce an outcome that matches the interests of the disputants."

HISTORY OF MEDIATION

Before 1066 AD in England, most conflicts were handled by someone trying to talk sense into the people in disagreement. As this lacked effectiveness, Norman kings later replaced this process with law judges and gave rise to what we now call common law. In the early days of the common law, justice was swift, unpredictable, and erratic. Parties either hired the best fighter they could find for a trial by combat or submitted their case to a judge for a trial at law. In either case, luck seems to have played a significant part in any outcome. People making business decisions did not like the risk involved and set up their own system known as the “Law Merchant”. This allowed businessmen to settle issues without killing each other and without relying on unpredictable judges and juries. The most common method used in the Law Merchant was arbitration. Here the parties would present their case to an arbitrator who would make a decision, similar to the role of a judge in a bench trial.

An alternative to arbitration was the summary jury trial which employed a private jury and a decision like that of a jury trial in a law court. Both arbitration and jury methods had the advantage of being more predictable and final. However, both methods generally resulted in clear winners and losers forcing decision to be followed despite whether the parties agreed. Often the Law Merchant ended both the conflict and the business relationship between the parties. Problems regarding "forced" resolution led to non-binding arbitration and mini trials. In these forms, the parties present their case and then receive the opinion of an outsider regarding the case’s value.

In modern times, taking a case to trial became time consuming and expensive. Accordingly, certain segments of the business world, notably construction and securities, began to regularly use arbitration instead of the courts. Following the successes of the construction industry, many insurance companies began to arbitrate inter-company disputes. During this return to arbitration, mediation re-evolved.

At on time, mediation involved uninterrupted face to face negotiations between the disputing parties. Mediators discovered that the process was worked better if the parties were separated after the opening statements. Mediation used to involve the mediator jumping into the process with his or her opinion. The process seems to work better for those mediators who either never provide an opinion or who give one only at the very end of the mediation. Mediation used to be public. Mediators discovered that the process worked much better if it was private and confidential. Mediation used to be a single meeting process. Mediators discovered that the process works better with multiple caucuses. Through a thousand years of trial and error, mediators found methods that were successful. In fact, the current method of mediation works so well that it is replacing arbitration in many areas. [1998 Stephen R. Marsh]


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