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
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
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.