January 02, 2007

Mediation accomplishes this by utilizing the willingness of the parties to find a resolution by mutual benefit. Environmental disputes, neighbors arguing with one another, business deals gone wrong, marriages and personal relationships broken, anger in the workplace or corporate environment, family and elder care concerns are all areas ripe for mediation.

What is mediation? Mediation is "a structured, voluntary dispute resolution process in which a person with no interest in the outcome of the conflict assists the disputants in reaching a negotiated settlement of their differences. A mediator facilitates communication, promotes understanding, focuses the parties on their interest and seeks creative problem solving to enable the parties to reach their own agreement".

Mediation is one form of conflict resolution. Mediation differs from negotiation in which two or more people bargain for a resolution. Mediation is not arbitration; arbitration is more formal and the arbitrator makes a decision for the parties in conflict. Litigation also is a form of dispute resolution, but represents a formal procedure and a court of proper jurisdiction decides the outcome of the dispute.

According to the National Institute of Dispute Resolution (NIDR), mediation is not the practice of law. Its primary purpose is to resolve conflict. A good mediator will have general knowledge of substantive law involved in the conflict, but does not engage in the practice of law while mediating. A lawyer is a good choice for a mediator due to his or her knowledge of the law and the legal process in general and his or her ability to engage and work with people. Meditation is not therapy. Although emotions may be elevated in times of conflict, a mediator does not counsel participants during the course of mediation.

In 2005, the American Bar Association, the American Arbitration Association and the Association for Conflict Resolution adopted the model standards of conduct for mediators. This adoption promotes mediation as an alternative for dispute resolution and provides guidelines to practicing mediators. The Association of Conflict Resolution lists the following purposes of mediation:

· An opportunity for parties to define and clarify issues;

· An opportunity for the parties to understand different perspectives and identify issues;

· An opportunity for the parties to explore and assess possible solutions;

· An opportunity to reach mutually satisfactory agreements when desired.4

When conflicts can be mediated, the willingness to agree to a solution can produce outcomes that are easier for the parties to accept. When conflicts must be litigated, the willingness to agree may be overlooked. Mediation does not preclude litigation and many cases, due to a particular circumstance, can only be resolved by litigation. Mediation does provide the parties with the ability to take control of the outcomes of the conflict. Theoretically, there is no conflict that can't be resolved. A mediator is a professional, third-party person provided to assist the parties. For mediation to succeed, the parties must have a willingness to participate and agree. There are numerous publications on conflict resolution and mediation. Two suggested titles are by Stewart Levine, a mediator: "The Book of Agreement" and "Getting to Resolution". If you have a conflict brewing in the work environment, with family or neighbors, mediation is an effective first step to consider.

Mary Ann is a member of the Pennsylvania Council of Mediators and the Delaware Alternative Dispute Committee. She has been trained in mediation practice including adult guardianship mediation.