Notes on Mediation

by
Edward Howden

(Central concepts, usual ground rules, based on experiences of the western Regional Office, Community Relations Service, U.S. Department of Justice.)

Mediation is a voluntary process in which parties to a dispute attempt to resolve disagreements between them through discussion, clarification, and orderly negotiation assisted by a neutral mediator. Each side comes to the negotiating table with a serious commitment to attempt in good faith to work out these problems. Either side may withdraw if, after patient efforts over a reasonable time, the negotiating team members become convinced that an equitable settlement cannot be reached.

A mediator facilitates the process. If the dispute or problem involves racial or ethnic minority concerns, the mediator can be provided by the Community Relations Service (CRS) of the U.S. Department of Justice. (CRS was established by Title X of the 1964 Civil Rights Act.)

Among other things, the mediator explains and interprets to the participants the ground rules and procedural details. He chairs the joint mediation sessions. He arranges, if needed, various kinds of resource assistance for either or both sides. He is a neutral, experienced professional.

Nothing can be imposed on anyone. Only the parties themselves can be helped to reach a settlement through full examination of the issues, open-minded exchange of views, and acceptance of reasonable remedies or new arrangements to address recognized grievances or needs. The mediator is in no sense an arbitrator or judge; he does not make findings; he does not hand down decisions on matters of dispute. Mainly he is a moderator of referee who sees that the agreed-on procedural rules are observed and who helps steer the discussion along toward possible solutions.

The negotiation team for each of the parties usually consists of three to five persons. One member of each team serves as captain or chairperson—that is, leader of the team and chief spokesperson. Much of the time this person is the one who expresses the position of the team; other members may also enter into the discussion.

Each team is understood to be authorized to represent the interests and concerns of its constituency, parent body or other involved group, and to be empowered to seek a negotiated settlement of outstanding problems. In some cases a team has final power to commit the body it represents to an agreement. Or a team may be obliged to sign the agreement subject to ratification by the parent body; only when such ratification occurs on all sides does the agreement become final.

Only those individuals who are able and willing to make a commitment to participate in every mediation session should consent to serve on a negotiating team. Continuity is vital. Full attendance of all team members is essential not only to reach a good agreement but to make sure that it is carried out as effectively as possible. The only acceptable excuses for absence would be illness or serious personal emergency. To hedge against these possibilities a team may wish to have one or two alternate members. If so, these individuals must attend all mediation sessions. Alternates do not speak in joint sessions; they may do so in caucus with their own team.

Each team should prepare thoroughly for the mediation process, developing their proposals for resolution of issues and problems, and planning for effective presentation of their proposals to the other team or teams. Usually the mediator will meet with each team (perhaps also with its parent body or genera membership) during this preparatory period. He will listen carefully to everyone, seeking understanding in depth of their concerns and needs and the positions of the group on the issues. He will assist, if desired, in the team's preparation for the possibility that the parties will come to understand better each other's situation and proceed to hammer out a mutually acceptable settlement. From these preparatory talks with each party the mediator will work up an agenda covering all matters which are to be addressed.

Where possible, it is sometimes desirable to hold the joint sessions in a concentrated time frame, as in consecutive days. But it will often be necessary to recess the sessions for a time for fact-finding, consultation with constituents or special advisors, evaluation of proposals, drafting of a prospective agreement, or other compelling reasons.

During the mediation sessions any team or the mediator may request a brief recess in order to caucus -- to consult with on another in private. The mediator is available to the teams for consultation if desired during caucuses, or otherwise. If a team wishes to discuss any matter which the mediator in confidence, such information will not be disclosed except as clearly authorized. The more fully the mediator is permitted to understand the problems and position of each party, the more useful he ca become in raising questions or offering ideas which will help forge an agreement.

In some situations the mediator may find that progress can be made in separate meetings with the respective teams as well or better than in joint sessions. Significant work in mediation occurs not only at the table but often in caucuses or other separate consultations during longer recesses.

Although mediation is a means of seeking resolution of disputes involving conflicting views or interests, the mediation process is significantly different from legal adversary actions. The end result in successful mediation does not consist of "winners" and "losers," but of parties who have carefully examined and defined set of issues and have come to an accommodation of views and practices. The main focus is not on adjudicating alleged past offenses but on forging consensus as to reasonable and desirable new ways of doing things from this point forward.

Mediation sessions are closed to the news media and other outside parties, except for resource specialists or observers agreed in advance. No mediation team participant or other person present reports or discusses the content of the proceedings or positions of the parties with newspeople, public, or others not directly involved. This does not limit team members from conferring from time to time with their parent body or key decision-makers whom they represent, but there must be no disclosure at agreement, except upon explicit written waiver of this confidential status on a particular point by the party affected and with the consent of the mediator.

All proceedings in the course of mediation remain legally privileged. Nothing said or presented (including proposals, offers, and responses) by any person may be publicly disclosed or used in any legal or administrative action at any time. All participants and observers must respect, even after conclusion of the mediation, the confidentiality of everything of substance that has transpired throughout the mediation process, expect for those matters set forth in the concluding agreement or other mutually agreed statement (s) of the parties.

This same cloak of privilege and confidentiality extends to any routine or special report of substantive matters within the mediation process which any employee or officer of CRS submits, receives, or files. Under penalty of law, no employee or officer of CRS may disclose any confidential information or engage in any investigative or prosecuting function arising out of a dispute in which such person has acted on behalf of the Service.* As a matter of long-standing policy and practice, reports of CRS field staff do not include referenced to specific positions, proposals, or responses of parties in the mediation process. The concluding agreement, if achieved, becomes a public document which speaks for itself.

Any matters finally agreed upon in the mediation are set forth in a written document, signed by the respective team leaders and/or members and witnessed by the mediator(s). This agreement may take the form of a memorandum or understanding, a formal contract, or a consent decree, among others. It is released for public information in a manner decided jointly by the parties; a consent decree is in any event a public court record.

There can be no advance guarantee that the parties will achieve agreement, The Community Relations Service, however, has successfully mediated cases throughout the country, involving a wide range of problems experienced by minority and racial or ethnic groups, communities, and tribes. Almost always the parties have come to understand each other in a manner never before achieved or even contemplated. Most of the problems taken to mediation have been resolved and constructive changes in attitudes and relationships, as well as in life conditions, have resulted.


Copyright © 2000-2007
by Conflict Management Initiatives and the Conflict Information Consortium at the University of Colorado