2 August 2009
Mediation is a non-adversarial process in which a third-party neutral assists parties in reaching a negotiated resolution to a conflict. The mediator does not impose any solution; the parties come up with their own solution. This leads to greater satisfaction as well as greater compliance with the terms of the mediated agreement.
The goal of the mediator is to facilitate communication between the parties, maintain order and civility, focus the parties on the real issues, and to inspire the parties to generate and agree on options that meet all interests. To achieve this goal, the mediator must be a skilled communicator, trusted by the parties, assure the parties of confidentiality, and remain completely neutral.
One article describing mediation states, "the mediator is primarily a "process person," helping the parties define the agenda, identify and reframe the issues, communicate more effectively, find areas of common ground, negotiate fairly, and hopefully, reach an agreement. . . . The key [to successful mediation] is the ability of the mediator to create a more productive discussion than the parties could have had by themselves."
When parties submit to having a solution imposed by an outside arbiter, such as a judge or arbitrator, one often ends up as a "winner" and the other as the "loser". Mediation allows a greater and more creative range of solutions than is available to a court. Parties who craft their own, negotiated solutions, are empowered to focus on their real interests and thereby to find creative ways to meet the needs of both sides. As a result, the parties are generally happier in the long term.
Indeed, one benefit of mediation is that it makes it possible for parties to preserve and even strengthen relationships by fostering communication and helping them learn strategies for working through difficult issues. Thus, mediation is particularly beneficial when the parties must interact on an ongoing basis, whether that interaction is the result of a child custody and visitation arrangement or the result of two tribes linked geographically who must share natural resources.
Mediation that is primarily focused on working through a particular issue, without any particular concern for preserving an ongoing relationship between the parties, is termed problem-solving mediation. This is the type of mediation in which two parties to a particular dispute use a mediator to facilitate a settlement of one, particular dispute.
Transformative mediation, in contrast, is mediation that is primarily focused on enabling parties to build and strengthen a continuing relationship. Focusing on the building of relationship, transformative mediation helps parties establish ground rules for engagement, teaches positive techniques for communication, and enables parties to communicate and thus better understand all aspects of the conflict they are experiencing. Even when a solution both parties agree on is impossible, transformative mediation can further peace among the parties by giving them clearer and deeper understanding of the conflict and of each other.