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Justice, fairness and mediation
Justice, fairness and mediation

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5 Mediation

In mediation an independent third party (a mediator) helps the parties to communicate with each other and to build consensus with the aim of achieving a mutually agreed settlement. Mediation may consist of the mediator consulting with each party or conveying their arguments or offers to each other. Consequently, this may mean that the mediation takes place with all parties in the same room or with parties in separate locations.

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Figure 4 Mediation is a particularly important form of Alternative Dispute Resolution

A crucial aspect of any mediation process is confidentiality. The mediator and any parties participating in mediation are bound by a duty of confidentiality. This means that the mediator cannot disclose to one party what the other has said, beyond conveying the key messages which the mediator has been asked to convey.

The focus of mediation is on the identification of a mutually agreeable solution to the issue. Rather than focusing on the parties’ legal rights and duties, the mediator focuses on the outcomes that the parties hope to achieve. This focus on the future outcomes can help parties to move beyond what has happened in the past to achieve a solution to the issue. While this might be a compromise it should be a compromise which all parties are comfortable with.

The key principles and characteristics of mediation are outlined below.

  • Use of a mediator
    • Mediation cannot take place without a mediator – a neutral third-party whose role is to support the resolution of the dispute. The most important skill of a mediator is the ability to understand the problem from both sides, which requires listening, questioning and empathising.
  • Neutrality of the mediator
    • The mediator’s neutrality and impartiality are essential to the mediation process. A mediator must be independent in order to assist discussions and help the parties in dispute to reach a mutually acceptable resolution without taking sides.
  • Dispute resolution
    • The primary goal of all mediation is the settlement of a dispute; it seeks to deliver quickly a settlement that all parties can live with. This may mean that the parties in disagreement are more likely to sustain their relationship, whether it is a business, family or personal relationship.
  • Providing a neutral and safe venue for negotiating
    • For mediation to be successful there must be conditions conducive to discussion, exploration of options and possibilities, and negotiation. This point highlights the essence of the mediator’s art: to bring the different parties together in the same room, minimise any hostility and encourage them to consider and discuss how they can reach a settlement which is acceptable to all parties.
  • Confidentiality
    • One of the defining characteristics of all mediation is that it is a private and confidential process.
  • Control rests with the disputing parties
    • The parties involved retain control over whether they wish to settle and on what terms. Mediation facilitates communication and encourages a problem-solving approach in which all parties have a direct input into the final outcome.

Mediation vs negotiation

While superficially mediation and negotiation may seem similar, there are nonetheless some crucial differences.

Mediation is more formal than negotiation as it requires the appointment of a mediator to conduct it. The mediator must be acceptable to all parties; this in itself may be a source of dispute, and it may require some negotiation to find a mutually acceptable mediator.

Mediation does not need to be conducted by a professional mediator. It can be conducted by anyone whom the parties agree as an appropriate person; however, many parties prefer to use a trained mediator and in some cases they may be required to do so.

As with negotiation, mediation is only effective when all parties are committed to the mediation. It is also beneficial if the parties have equal power/status or are willing to operate on that basis.

When might mediation be used?

There are a wide range of situations in which mediation might be used. These include:

  • family issues
  • community/neighbour issues
  • health issues
  • business/commercial issues
  • environmental issues
  • discrimination issues
  • housing issues
  • additional support needs issues
  • employment issues
  • financial issues, such as debt or small claims.

In addition, mediation might be used after negotiation has failed or parties may decide to start with mediation. If mediation fails, parties may be able to use other types of ADR or to go to court, though in some jurisdictions, the law requires or suggests that mediation should be used as an alternative to court proceedings or should be attempted prior to court proceedings. For example, in England the Children and Families Act 2014 requires mediation to be considered before some family law applications can be made.

Importantly, while mediation is less formal than going to court, it is not always less expensive.