People are made to disagree. This is because we are made as unique individuals with independent minds and lines of reasoning. It is expected that people disagree as a matter of first principles because they see things differently and have differing tastes and priorities. However, if they can reason together and come to an acceptable concession where a part or all of their expectations are met, then disagreements can be minimal. The principles of mediation seek to create an atmosphere of a safe opinionated and psychological environment or space for effective and controlled dialogue leading to the discovery of common grounds of acceptance for enhancing and strengthening continuing relationships among disputing parties.
Mediation is a process whereby a third party (considered as neutral) assists parties in dispute to jointly search for a solution acceptable to them. The process is both a science and an art and though unstructured, it requires a high level of creativity and intuitive thinking to weave conflicting ideas together into one idea and solution which is acceptable to all parties involved in the impasse.
The mediation process is driven by a number of principles which have expanded in number and content over time. However, six (6) remain fundamental to the process. It follows that for a process to be called mediation it has to be Voluntary, Informal, Neutral or Non Judgmental, Self Determining, Future Oriented and Confidential. The absence of any of these makes the mediation incomplete.
It is expected that parties in dispute first of all choose Mediation as a preferred method of resolving their dispute by showing confidence in the process and accepting it as the best way to reaching a solution. They must also jointly select a mediator to help them in the process of exploring alternatives to an acceptable solution.
Mediation may be held at any venue and location so long as it is acceptable to the parties, comfortable enough and has all the facilities needed for effective conferencing. Today, some mediation sessions are conducted by video conferencing in circumstances where time is limited and parties are far apart in terms of location.
The parties are expected in mediation to own the process. They determine what is best for them and only depend on the mediator for facilitation of the process and clarification of issues for informed decision-making and settlement. In achieving the appropriate settlement, they collaborate and explore various alternatives together for solution.
Most dispute resolution methods entirely ignore the parties’ on-going relationship or place very little weight on the fact that the parties’ relationship must be enhanced or at worst protected as part of the expected outcomes of the process. Mediation places extremely high premium on an enhanced interdependent relationship between parties as a targeted outcome. It is expected that parties are assisted by the mediator as a matter of principle to work on their relationship in good faith as they seek solutions to the conclusive resolution of their disputes.
The issues discussed in mediation are considered strictly confidential and most at times cannot be used as evidence in a court of law unless the specific issue is considered criminal under legislative provisions of the state.
One very important (perhaps the most important) principle of mediation states that the process must be neutral and free from bias. The third party (mediator) is normally called the ‘neutral third party’ because the process places the responsibility of neutrality on the mediator. As a result of the phrase ‘neutral third party’, the mediator is inaccurately expected to be completely neutral as a person.
The principle of neutrality is central to the success of mediation. Parties come to the table with fear, anxiety and a sense of urgency as a result of lack of trust for each other and they turn to the process for solace and solution as they show confidence and belief in the mediator to help salvage a desperate situation. By choosing Mediation, they lay their fate in the hands of the mediator, expecting to be shown the ‘light’. Under such circumstances, they can expect nothing short of the mediator being completely non-partisan. This is seen as a major challenge to the mediator because in principle, the issue of neutrality is central to the process and not the mediator. In their zeal to helping the parties settle their impasse some mediators get carried away into thinking that the resolution of the dispute rests on them. The mediator’s role is to act in concert with the principles of the process to achieve a mutually acceptable solution.
Mediation processes have sometimes been unsuccessful because of complete, partial or perceived bias on the part of the Mediator. It is becoming very urgent to address the question of complete neutrality as a core competency for Mediators.
Laurie Nathan of the Centre for Conflict Resolution (CCR) in South Africa writes;
“This emphasis on impartiality reflects an ideal which is not fully attainable since no individual is free from bias”.
It is widely accepted that general behaviour, speech and personality evolves from values developed from social, psychological, religious and professional contact with society. And a mediator’s past experiences and contact with society on specific levels may most often be brought to bear and affect behaviour during mediation, however subtle.
A mediator today is generally expected to be neutral - an ideal situation, which cannot be easily attained. It is important that focus is kept on the mediation process and not the mediator. When this is ignored, a misconception is encouraged where parties keep looking to the mediator for solution instead of the process. No matter how much a mediator stresses his/her responsibility to the neutrality of the process, parties will always try to have the mediator make judgments which they expect to be in their favour and against the other party. This encouragement often leads to perceived bias of the mediator from the other party. Mediators must be seen diverting parties’ attention from their personality to the process and must also be seen acting out and focusing on principles of the process.
The professionalism in a mediator is profound and commendable when such a mediator acts in a manner that is seen by the parties as non-judgmental, non-partisan and neutral. It depends on the parties entirely to determine what is neutral and what is not because at the end of the day the outcome will always be theirs. An action in one mediation which is seen by parties as acceptable and not partisan or judgmental may be seen in another as such.
The caucus is a useful stage in the mediation process where the mediator takes the opportunity to have private meetings or sessions with each party. Here, the role of the mediator shifts a bit from that of a facilitator to more of an advocate of innovative ideas that may help the party speed up the resolution of the dispute. Persuasion is used very often but imposition must be avoided at all cost. The thin line between persuasion and imposition determines how neutral a mediator may be perceived by a party in caucus. However, extreme confidentiality plays a major role and is normally the driving force for the determination of neutrality at this stage of the mediation process. The skills and actions of the mediator exhibited in assuring the parties of total confidentiality on his/her part will in no doubt result in, and enhance the building of trust leading to a positive awareness of neutrality in caucus.
Language and Successful Outcomes
Successful outcomes depend more on the mediator’s skills that underline speech and actions during the process. This is referred to as the ‘mediation language’. The language is deeply entrenched in the principles of mediation and can hardly be faulted as partisan or biased.
In his article Metaphors and Mediation, John Haynes writes;
“Language is the mediator’s tool of trade...in Mediation, language is almost all we have to work with”.
A professional Mediator is expected to be detached from the parties but central to the process. His skills and dynamism must revolve around the process and he is expected to be a master of the process by the use of effective language – verbal and non verbal.
The mediation process is ‘key’ to the conclusive resolution of disputes. The mediator is only a manager and it is the process that must be managed as a neutral one and requiring a mediator to be completely neutral as an may be a tall order. The role is simple. He is expected to act in concert with the process in terms of neutrality because his actions are central to a successful outcome as vetted by the disputing parties.