Mediation has been considered an alternative dispute resolution (ADR) process, and rightly so. Mediation has become a very much sought alternative to litigation in either state or arbitration court. The credibility and the historic performance and results of mediation processes have reinforced this role. Although sometimes for circumstantial reasons (such as for the purpose of relieving high case load in state courts) many sovereign States have formally adopted mandated mediation. Mediation has become also an alternative to costly, time consuming and resource hungry processes, for all kinds of conflict resolution – in teams, in the board room, in committees, in dealing with the public, and in so many and varied contexts – from health care to the factory floor, from the environment to the family, from the community to the board room and in commercial and business contexts.
Mediation has also been considered “supported” or “assisted” negotiation. This opens a much broader spectrum of application for mediation. In fact I would like to submit to your consideration the following assertion:
Any and all negotiation can also be mediated.
In this sense mediation is a special type of negotiation and can be applied in many non-conflict, non-litigious, instances. Examples can be listed such as consensus building processes, team decision making, leveling power and communication skills differences (such as with foreign communities), impasse situations, straightforward conscience of lack of negotiation skills from one or all parties (technical personnel who have to perform political negotiations represent a good example of this instance.) Several other situations where mediation can be used will come to your mind in your specific professional and personal areas. Broadening the scope of mediation also requires another look at the role of the mediator – broader than the peace keeping, conciliatory and transformative roles assigned in the literature, and generally considered in mediator’s training. I would like to propose to you the following role for the mediator:
The mediator is a manager of the negotiation process.
To fully assume this role the mediator is required to have in depth knowledge of negotiation, both in theory and in practice (please understand that when “mediator” is mentioned in this text it encompasses one mediator and/or a mediator team). This asks for a good half of the time, at training courses for mediators, be devoted to understanding negotiation, and practicing negotiation. How could you manage successfully as mediator a process, the negotiation between the parties, which you do not understand?
Most trainers on negotiation recommend a Phases Based Negotiation Model and most trainers on mediation recommend a Phases Based Mediation Model. The idea of phases is similar in concept to the value-added chain in management: there is a preferred sequence in time to perform certain tasks in the process. The right sequence will give superior results, with more value added, than haphazard intervention. The question then may be: how do the two models fit?
Doug Noll discusses the future of litigated and non-litigated cases. See the full transcript below. My name is Doug Noll. I am a mediator from California, and I have...By Douglas Noll