Whenever a third party acts to effect an agreement or reconciliation between other parties, – whether friends, business partners, couples, even total strangers – the process would rightly be called mediation. In International Law, when one power uses its good offices to get a peaceful settlement between disputing nations or powers, this also is mediation.
However, in the practice of mediation as a formal profession or vocation, certain qualities must be present, acknowledged, and upheld. These empirical qualities must be present for mediation to qualify for what in TDSH we promote as “Authentic Mediation”.
What are these elements or characteristics that must be demonstrably present in Authentic Mediation?
1. It must be totally voluntary
It must be totally voluntary for the Mediator, as well as the parties, their representatives, and/or advisors; indeed, anybody who is involved in it at all. Furthermore, any incentives to encourage embracing mediation must not be punitive, coercive, or manipulative. Even the written agreement must warrant parties’ voluntary, non-coerced agreement to submit to the process of mediation.
Thereafter, of course, any ensuing mediation settlement agreement will be binding and enforceable on the parties who would have freely executed the agreement. To that extent, then, it still remains voluntary.
2. Autonomy of the Parties upheld – i.e., the power of resolution must reside, exclusively and without compromise, in the Parties in dispute.
Parties must own the conflict and be responsible for the solution. The Mediator serves as a neutral guide, an umpire, who ensures that all the rules are strictly observed and enforced. Nevertheless, the Mediator has the authority and responsibility for conducting the process and enforcing compliance with relevant rules.
While the Mediator may suggest settlement options, Authentic Mediation, it is critical to ensure that parties have not abdicated or delegated their power of resolution to the Mediator or, for that matter, to any third party. This is the main distinction between Authentic Mediation and, say, arbitration, conciliation, or litigation. In these other forms of resolution, another takes the responsibility of resolution, which should really be the parties’.
So, while “it may please the court”, as counsel customarily concede in litigation, it rarely ever truly pleases the parties or their representatives.
3. Collaboration
Authentic Mediation is the resolution of a dispute through cooperative, collaborative efforts. Everybody collaborates: the parties; their representatives, advisors, and consultants; and their witnesses; in the “joint venture”, to mutually resolve the conflict or dispute. Thus, parties are able to take ownership of the outcome.
4. Confidentiality Uncompromised
Confidentiality is uncompromised and participants, with strictly no exception, are strictly bound thereby. There are no precedents for compelling the public hearing of a mediation process, even in court-connected mediation.
5. Flexibility and Interest Based/Driven – Technicality Eschewed
Authentic Mediation is interest based, focusing on the way forward rather than past history, while it tries hard to achieve the preservation of relationships. In Authentic Mediation, the Mediator and parties take as much time as they effectively need to determine the best resolution of their mutual interests. And this, without the undue constraint of rules and technicalities, often make it hard, if not impossible, to elicit the fundamental elements of the conflict. In fact, this is the real reason other processes are long and why Mediation resolves disputes faster than the former. Authentic Mediation typically eschews technical loopholes, encouraging Parties to go beyond the letter to the spirit of the agreement, as well as the relevant relationships and surrounding circumstances.
6. Mediator: Advocate and Evangelist
The Mediator must be committed to these principles and be ready at all times to help parties understand the purpose, the elements, and the objectives of Authentic Mediation. This, in turn, will help them in embracing these and to exploit mediation most optimally. Note that Mediator constantly guides, encourages, and educates, but never compels or manipulates. The purpose is to enable the Parties to widen their vision and be creative in seeking and agreeing solutions.
7. The Dispute Solutions Hub (TDSH) – www.thedshub.com. – The TDSH Roundtable.
The TDSH Roundtable, is a cadre of Highly Qualified and Experienced Mediators who offer Authentic Mediation and subscribe to the highest standards and ideals of professional ethics, conduct and integrity. The TDSH Roundtable is committed to catalyzing, championing, and promoting Authentic Mediation as the best method of resolving conflicts and disputes through creative thinking and transformative solutions.
Their dream is a society which is used to the fact that it does not have to cost me years – two, five, or even then, if not more – or relationships, to resolve. A society that realizes that the power, and therefore ultimately the responsibility, of resolving my conflicts and disputes, lies with me. Where mediation has evolved beyond mere process, into culture and lifestyle. Dream? Why not? Let us all dream.
POSTLUDE
Will mediation ever totally replace litigation? Oh no! Definitely not!
Litigation will always have its own role – not as much to resolve disputes as to ensure that law is correctly interpreted and, where necessary, enforced. However, 75% – 85% of disputes and conflicts do not turn on the law but on factors other than – even if in addition to – the law. The law courts are not equipped to deal with that. Where do you deal with these? In mediation! Authentic Mediation.