COMMON ASPECTS OF MEDIATION
Mediation as a process involves a third party (often an impartial third party) assisting two or more persons, ("parties" or "stake-holders") to find mutually-agreeable solutions to difficult problems.
While some people loosely use the term "mediation" to mean any instance in which a third party helps people find agreement, professional mediators generally believe it essential that mediators have thorough training, competency, and continuing education. The term "mediation" also sometimes occurs incorrectly referring to arbitration; a mediator does not impose a solution on the parties, whereas an arbitrator does.
While mediation implies bringing disputing parties face-to-face with each other, the strategy of "shuttle diplomacy", where the mediator serves as a liaison between disputing parties, also sometimes occurs as an alternative. Some of the types of disputes or decision-making that often go to mediation include the following:
- Prenuptial/Premarital agreements
- Financial or budget disagreements
- Financial distribution and spousal support (alimony)
- Parenting plans (child custody and visitation)
- Elder-care issues
- Family businesses
- Adult sibling conflicts
- Disputes between parents and adult children
- Estate disputes
- Medical ethics and end-of-life issues
- Wrongful termination
Disputes involving the following issues:
- Homeowners' associations
- Contracts of any kind
- Medical malpractice
- Personal injury
- Non-profit organizations
- Faith communities
- Youth (school conflicts; peer mediation)
- Victim-Offender mediation
Mediation commonly includes the following aspects or stages:
- Controversy, dispute or difference of positions between people or a need for decision-making or problem-solving
- Decision-making remaining with the parties rather than imposed by a third party
- Willingness of the parties to negotiate a "positive" solution to their problem and to accept a discussion about respective interests.
- Intent to achieve a "positive" result through the facilitative help of an independent, neutral third person.
In the United States, mediator codes-of-conduct emphasize "client-directed" solutions rather than those imposed by a mediator in any way. This has become a common, definitive feature of mediation in the US. Mediation differs from most other adversarial resolution processes by virtue of its simplicity, informality, flexibility, and economy. The typical mediation has no formal compulsory elements, although some common elements usually occur:
- Each of the parties allowed to explain and detail their story.
- Identification of issues (usually facilitated by the mediator).
- Clarification and detailed specification of respective interests and objectives.
- Conversion of respective subjective evaluations into more objective values.
- Identification of options.
- Discussion and analysis of the possible effects of various solutions.
- Adjustment and the refining of the proposed solutions.
- Memorialization of agreements into a written draft.
Due to the particular character of this activity, each mediator uses a method of his or her own, that might eventually differ markedly from the above scheme. Also, many matters do not legally require a particular form for the final agreement, while others expressly require a precisely determined form.
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