What is the mediation process?
Successful mediation as an alternative method of dispute resolution, in all of these contexts, is mediation because it has the following five elements:
1. An impartial third party facilitator
The third party neutral, the mediator, is the person who makes the entire process work. As long as there is a neutral facilitator, the parties can trust that they have some safety and are not being abused by an interested party. All of these programs work because the mediator in them is known to either be neutral or supportive of the parties and not an involved party.
Thus the first thing that makes a process one of is a third party who facilitates and assists the parties in a neutral fashion to find the parties own best interests.
2. A third party who protects the integrity of the proceedings
Usually this means that the facilitator or mediator protects the confidentiality of the proceedings. Thus, not only does the mediator not take sides against any party to the mediation, the mediator does not usurp the parties' rights to disclose, or not disclose information. The mediator preserves the integrity of the proceedings in all ways.
Generally this means many things; such as there are no records kept by the mediator. When there is no record, it becomes much harder to breach confidentiality or to try to use the mediator to prove or force a particular point not finalized in the parties agreement. In fact, some ADR groups and centres require the parties to take all notes on provided paper and then take and destroy even the notes after each session.
Confidentiality also means that the facilitator is not subject to a court summons and thus cannot be made a witness. Without notes or the facilitator, the only method to breach confidentiality is the evidence of an interested party who is usually bound by law (and thus subject to being quashed) not to disclose more than is agreed.
3. Good faith from the participants
Good faith includes not only entering into the ADR method with the intent to work towards a resolution, it also includes not using the process for outside purposes. Thus there are rules that provide for no service of process during ADR, and for similar bars to the abuse of the mediation process.
What makes all of the proceedings mediation is that the parties are in the process to seek solutions rather than for an ulterior purpose (e.g. to abuse the other party by use of the process). Both the behaviour and integrity of the neutral mediator are important in creating, and preserving good faith.
4. The presence of the parties
Those with full authority to act for the parties must attend so that the parties can work towards resolution. If the decision makers do not attend the process becomes something other than mediation.
All parties necessary to resolve the problems should interact with the mediator. In a family dispute, if a party always checks with his parents before acting, the parents should attend (and may need a referral to additional counseling). In an employment matter, if a company director always checks with the majority shareholder, the majority shareholder should attend.
It is the parties who are being resolved as much as it is the problem that is being settled.
5. An appropriate site or venue.
This means a neutral site that is conducive to the process. It must mean a place where neutrality, confidentiality and inclusiveness may be obtained. The place is some times as important as the persons and is a part of the process often overlooked.
