Mediation is one of the tools in conflict resolution. It is one response to resolve conflicts, outside of the judiciary system, within A.D.R. = Alternative Dispute Resolution.
Mediation is a voluntary, non-binding, private dispute resolution process in which a neutral person helps the parties try to reach a negotiated settlement
Mediation is voluntary in the sense that, in the vast majority of cases, it takes place as a result of the Parties consent to enter the mediation process. Mediation is non-binding unless and until an agreement is reached. Entering the process itself –does not bind them to settlement.
Mediation is private, but is supported by the courts, conducted without prejudice. And it is usually – with absolute confidence.
The Mediator is a neutral person, a trained professional who assists the Parties in their negotiations.
Mediation is a tool in human relations, negotiations and conflict resolution, because it exposes the hidden interest in a relationship, tries to give an answer to what is important –and not to the statements made.
In negotiation, you have to change the attitude of people involved from competition and confrontation to collaboration, to a win – win situation, no to a lose -win situation or loose – loose situation.
As a philosophy –mediation believes in dialogue and not antagonism, ADVERSARY or violence. According to the Americans Jay Folberg and Alison Taylor in their book "Mediation”,
- “Mediation is an intervention that is intended to resolve disputes and manage conflict by facilitating decision making. It can be defined as the process by which the participants, together with the assistance of a neutral person or persons, systematically isolate disputed issues in order to develop options, consider alternatives, and reach a consensual settlement that will accommodate their needs.”
Mediation is a process that emphasizes the participants` own responsibility for making decisions that affects their lives. It is, therefore, a self-empowering process. Mediation has definite stages involving a series of techniques for accomplishing necessary tasks, on which I will elaborate later.
Considerable efforts have been made to regulate mediation within the legal system. In Israel, for example, agreement reached through mediation process, will get the verification of the court, which will give the agreement, reach a verdict, as if there was a court case.
This process has encouraged people & organizations, to seek mediation as a means of solving conflicts, and as a dialogue for consensus building.
In ancient China, mediation was the principal means of resolving disputes (Brown D "Divorce and Family Mediation: History Review Future Directions” Conciliation courts review 1982 20(2) 1-37 in Folberg and Taylor).
The Confucian view was that optimum resolution of a dispute was achieved by moral persuasion and agreement rather than sovereign coercion. Confucian beliefs proposed the existence of a natural harmony in human affairs that should not be disrupted. Unilateral self-help and adversary proceeding presume the end of a harmonious relationship and would thus be the antithesis of the peace and understanding central to Confucian thought.
Mediation can be a useful intervention technique when the situation calls for a structured agreement to a conflict Mediation has definite stages involving a series of techniques for accomplishing necessary tasks. It is a finite process that takes in mind the values, norms, and principles of the participants.
Whether it based on the philosophy of goal-directed intervention, or on a transformative one (seeks to change the whole relationship), mediation is usually a short-term process. Personal histories are not important, Mediation is more concerned with the present and future than with the past. Mediation is not a therapy. Although participation in mediation may have a therapeutic effect on the parties, it is not intended to deal with internal change.
The mediation process can be applied to a variety of conflicts: - marital, domestic issues, business and labor disputes, racial tensions, educational conflicts, etc. Mediation improves and gives life to a better Communication, and the world to be something everybody could benefit from.
The system of mediation, requires a good preparation by the mediator, an opening statement to build up the participants’ trust in the mediator and in the mediation process, , listening, emphatically, to the points of view presented by the parties, in a common meetings– mirroring their story of dispute, and there after, separate meetings with each participant alone, to verify the dispute subjects, identifying the interest, which are the hidden most important element in solving a conflict, than – creating options, by being very creative, and –last but not least, reaching an agreement , which – in most cases, renews relationships and cooperation, between the parties who were in dispute –and, successfully resolved it.
A Research done in Canada, indicates, that When people have been a part of a conflict resolution process that is customary to them and that they consider to be fair and just, they are more likely to comply with the outcome (even if it is not in their favor), have a higher level of psychological satisfaction, keep relationships intact, and use the process again.
Who is the mediator?
Mediation is a profession, since mediators need to have, at least a basic training in the principals of the process, and some experience in mediating real cases referred to them by the courts – under the supervision of a veteran accredited mediator. Professional mediators are bound by code of Ethics.
However, it is for many people, mainly adults, a non-formal learning, to enable better life as democratic citizens. Thus, it is recommended to include the subject in the framework of active citizenship projects.
Mediators are generally lawyers, psychologist, educators or community leaders, or any mature adult with life experience - priding themselves on their impartiality and neutrality.
The mediator, using appropriate techniques, assists two or more parties to help them negotiate an agreement, with concrete effects, on a matter of common interest.
The mediator is a neutral, impartial third party, who facilitates an agreement on any matter in the common interest of the parties involved. Mediators are conflict resolves who help others resolve conflict in a voluntary and constructive way.
Converting real and potential conflict into mutual challenges is the correct and most productive mindset of a mediator.
According to DWIGHT GOLANN in his book “MEDIATING LEGAL DISPUTES” (1996): The mediator has no power to decide a dispute; however his role has special attributes that often make the intervention more powerful:
- He has the ability to the design the process
- To set the agenda - deciding which issues will be discussed and in what order
- He is perceived as being neutral, this perception allows a mediator to make suggestions, float trial balloons, and solicit ideas much more effectively than either the parties or their lawyers.
- Impartiality- he is often able to evaluate the merits of the case more accurately than the participants (a person's involvement in a dispute often distorts his judgment about how a court would decide it.
- Confidential information - the receipt of confidential information from each side is a source for meditative power.
But a mediator's position is also the source of potential weakness. Some of these are inevitable, but others can be minimized or avoided through forethought and precautions.
- Perceptions of bias- they begin with a neutral outlook but inevitably form opinions as they learn the dispute.
- Impatience- they want to justify their role by getting the parties to "yes" as efficiently as possible.
- Need for success- agreement is the prime reason to undertake mediation. But sometimes the best thing a mediator can do is recognize that settlement is impossible.
- Lack of subject-matter expertise- not knowing about every "tree" in a particular" forest" is an advantage if it allows you to bring a fresh perspective to the matter. However in more complex disputes a lack of detailed knowledge , a prior history of the dispute can be a weakness.
THE ROLE AND CONTRIBUTION OF MEDIATION TO ADULT EDUCATION AND LIFELONG LEARNING
A. Mediation and Adult Education
A1 Universal Principles of Adult Education
1. The provision of systematic, serial and subsidized learning opportunities for all adults throughout their lifetime, accommodating to their location, religious and ethnic origin; their beliefs and lifestyles; gender; their varying social-economic status.
2. The provision of training to help adults fulfill their social roles as adults, including:
3. Earning livelihood and developing work careers; building and sustaining family life; managing their civil and civic assignments; making informed usage of the leisure time and cultural consumption; developing friendships; contributing to the society and community in which they live.
4. Helping adults make maximum use of their potentials and capabilities, and helping needy adults who have impairments and difficulties to act fully.
5. Providing assistance and guidance to special groups of adults and needy communities, i.e. women, religious and ethnic minority groups, immigrants, older people.
A2 Mediation as Applying the Universal Principles of Adult Education
1. Mediation is a distinct framework of learning, based on adults' needs wherever they are and live, which deals with pressing daily and general issues and offers ways and techniques how to cope with adults' social roles.
2. Mediation as a process and as a product, releases and liberates personal, group, community and national negative energies and powers, and paves the way for positive and constructive energies and powers.
3. Mediation enables dysfunctional individuals to compensate for their impairments and lacking abilities, by learning and using mediation techniques and ways in solving daily problems and hurdles.
4. Mediation helps special groups and communities to re-organize, reach internal decisions and find their own place and development.
The training of mediators is in itself a tool to enhance the trainees' strengths and newly discovered skills, thus it servers as a useful method of training and re-training of adults in a career and a hobby.
General Features of the Mediators role:
1. Skillfully facilitate a structured communication process.
2. Establish a polite atmosphere in difficult circumstances.
3. Demonstrate empathy and respect.
4. Empower the parties to express themselves.
5. Encourage the parties to listen to each other.
6. Aspire towards impartiality.
7. Leave all decision making to the parties.
8. Be aware of and manage own values.
9. Be prepared to tolerate ambiguity.
B. The Contribution of Mediation to Lifelong Learning
Lifelong learning is a currently used concept (though it is old as some of the oldest cultures), which specifies an approach and strategy of implementing the aforementioned principles.
1. Mediation is appropriate, both for learning and using, throughout all stages of life: Childhood, adolescence, young adulthood, midlife, later maturity, older life.
2. Mediation is a profession, a vocation, which provides means of livelihood to growing number of adults in many continents and countries.
3. Mediation is an economic procedure to settle rivalries, conflicts, misunderstandings in all walks of life.
4. Mediation economizes and saves all kinds of resources, human and monetary in its outcomes. Instead of going to courts and spending irretrievable amount of money, mediation is inexpensive, short duration, and does not demand much time and energy.
B5. In their book “Getting to Yes” Roger Fisher and William Uri from Harvard school of Negotiation, use 2 terms in conflict resolution:
1. BATNA – Best Alternative to a Negotiated Agreement,
2 .WATNA – Worst Alternative to a Negotiated Agreement.
A professional mediator should reach a Banta, if he reaches a Watna, there will be no agreement and no settlement.
To sammarize: Mediation is a typical strategy for lifelong learning, one which serves adults of all ages and backgrounds, economical in its process and useful in its outcome.
In the last ten years there have been developments in “alternative” means of settling and resolving disputes mainly through mediation, which take place in Europe and the U.S.A.
The specific advantages of these forms of private justice, mediation, visa VI the courts, have led to a renewed interest in these methods of dispute resolution, which are more consensual than recourse to the courts or arbitration.
Mediation is preferred by community centers, senior citizens and schools, but also in use by the private & business sectors.
Mediation apparently is also a tool, which can help any individual in his relationships with his fellow men, and also a philosophy of life, which can become a relevant and significant subject within Adult Education programs, and widen the horizons of those who participate in the life long process of learning.
Those aims can be achieved by the use of the mediation process.
The rationale, why Mediation is promising?
- Mediation can educate the participants about each others` needs and provide a personalized model for settling future disputes between them.
- The ultimate authority belongs to the participants themselves, the procedure is not bound by the rules of substantive law.
- The emphasis is not on who is right and who is wrong but rather upon establishing a workable solution that meets the participants` unique needs.
- A consensual agreement will be more acceptable in the long run, the settlement will be more permanent.
- It works for a variety of disputes.
- It is a self- empowering process- the participants are responsible for the decision making.
Let us add Mediation on the Agenda of Adult Education world wide.