MEDIATION VS NEGOTIATION
Keith Strutt - Operations Director, Driver Group London
1.1
THE QUESTION
Discuss the differences between negotiation and mediation. When to employ negotiation and/or mediation? Discuss advantages and disadvantages of these two ADR mechanisms.
1.2OBJECTIVES
1.
The intention in this essay is to set out briefly the origins of negotiation and mediation (insofar as
either has a defined origin) and explore the common
ground between them. From this it will be possible to
define the differences and, thereby, discover the contexts within which each will be most effective. Each,
both generally and within its own context, will have
advantages and disadvantages that will affect its choice
as a method for Alternative Dispute Resolution (ADR)
and it is proposed that these are examined to provide a
contextual framework within which to assess and apply
each.
2.
As negotiation and mediation are practical
examples of a type of self help approach – to a greater
and lesser extent respectively – to the settlement of
disputes, it is suggested that the circumstances within
which they can be most effectively used can be best
illustrated with examples, examples from the authors
own experiences are given to illustrate the themes covered.
interaction, about others expectations and the value of
our own, by allowing us to appreciate the context which
affects the information that is communicated between
the parties and the effectiveness of the communication.
Within the context of ADR negotiation is a form of communication that has a definite objective; to resolve the
dispute. It is also a process that will be successful if it
overcomes or finds a way around or through obstacles.
5.
Negotiation is perhaps the freest form of consensual self help and party autonomy in the settlement
of disputes and, it is suggested, should always be the
first step in the resolution of any dispute. Negotiation
is a process two or more humans undertake when they
realise that communication is necessary to arrive at an
accommodation on some point of mutual interest.
6.
The true existence of a dispute, or the falsity
of the perception of a dispute that is not actually there,
will only become apparent once negotiation has been
attempted.
2.2
THE NEGOTIATION PROCESS
2.2.1 Conditions for Negotiation
2NEGOTIATION
2.1
WHAT IS NEGOTIATION?
3.
Negotiation is a noun for the verb to negotiate;
to try to reach an agreement or compromise by discussion. It can also mean to obtain or bring about and
objective by negotiating, to find a way over or through
(an obstacle or difficult path) or to transfer (a cheque,
bill, etc.) to the legal ownership of another1. Humans
experience negotiation almost throughout our lives,
from the first stirrings of communication with our parents through the full panoply of interactions with other
humans for the remainder of our lives.
4.
It is tempting to think of negotiation purely as a
part of a commercial process or dispute resolution, but
it is much more than that. The subsequent definitions
in the paragraph above hint at objectives and obstacles,
but these are only the purposes’ to which negotiation
is put. I would suggest that, at its heart, negotiation
is a tool for learning and teaching ourselves, through
7.
It is tempting, as negotiations can break out
at any time and in any place between any number
of parties, to assume that negotiation as ADR is an
exercise in free for all discussion and argument; this
is decidedly not the case. Even if it is not immediately obvious there are a number of conditions that are
required before negotiations can begin. The following
are a mixture of necessary and desirable conditions for
negotiation:
i. Identifiable parties (or their agents); clearly two
or more parties are required to begin a negotiation.
ii. A subject of mutual interest; the parties must
have and be aware of, a mutual interest or
dependence. This is the main driver for negotiation; if there is no mutual interest or dependence on the other then there is no real reason to
negotiate.
iii. Willingness; until all parties are willing to negotiate it will not happen (see sub paragraph i above
regarding the use of intermediaries).
iv. The desire to agree; (if possible). The desire and
need to agree must be present along with the
resources to enable it to happen.
v. The most attractive solution; the alternatives,
such as doing nothing, need to be recognised by
the parties as much less desirable than the option
of negotiating, often referred to as each party’s
BATNA2. This is generally not that difficult as
negotiation can be, in comparison to almost any
other forum for the resolution of a dispute, low
cost in time and money.
vi. Tempus fugit; it helps if the willingness is enhanced by the need to agree imposed by some
external time deadline.
vii. An enforceable (if necessary) agreement; the
subject must be one that is negotiable; either
from the point of view of the parties or from the
point of view of some supervising third party. To
enable the negotiations to succeed the negotiators must have the authority to agree – and bind
– themselves or the organisation they represent.
8.
Circumstances and context are critical in any
negotiation. The above list, while not exhaustive, contains elements that are common to many of the negotiations that the author has undertaken; the essential or
optional nature of any of them will vary depending on
the circumstances.
2.2.2 Stages of Negotiation
9.
As set out in section 2.2.1 above, negotiation
has a set of circumstances within which it takes place;
however, these circumstances are unlikely to occur in
isolation. It has been suggested that negotiation has a
distinct set of phases3. Within these phases the circumstances can occur in any order and in any combination.
10.
These phases of negotiation reflect the interactive and unstructured nature of negotiation. This
is not to suggest that no negotiations have structure;
some clearly do but even within the most structured of
negotiations, as the process of communication takes
place and the voyage of discovery of the other party’s
position (and your own) occurs, the phases can overlap,
swap and even reverse or go through multiple iterations
as new information comes to light. In general then the
phases are: i. Pre-Negotiation – Identification of a shared interest, requirement or dependency and selection
of a forum or medium for successful communication;
ii. Conceptualisation – Identify and communicate
each party’s position and understanding of the
subject in question;
iii. Bargaining - each party evaluates their own and
the perception of the other party’s position and
communicates their preferred solution (the bargaining phase); and
iv. Settlement – reaching and recording the agreement.
2.2.3Application
11.
As previously mentioned negotiations are an
example of unfettered party autonomy and can occur at
any time. Negotiations should be the first step (once
the realisation that doing nothing is not without cost
and risk and will probably be worse) in the resolution
of any dispute. One of its benefits is its ubiquitousness
in that everyone is familiar with the process even if
they are not necessarily fully aware that they practice it
every day.
12.
The question of when to apply negotiation to
the resolution of a dispute would appear at first to be
solely a question of why you would not. It is most
likely the most cost effective form of dispute resolution;
it requires no specialist advice or training to undertake
(although both, as part of the process of preparation,
are highly advisable). It is as flexible as the parties
wish to make it, can occur at any time and, as an expression of almost pure party control and autonomy, it
can supersede any other forum.
13.
It is not uncommon in the authors experience
for a negotiated settlement to occur: on the steps of
the court4, in the court, during a court recess or after
judgement; particularly if the losing party has not the
funds to pay and an agreement on what they are able
to deliver can be much quicker, cheaper and with a
higher chance of success than attempting enforcement
of a court order or arbitration award while standing in a
queue of unsecured creditors.
14.
Negotiation can occur during arbitration, to
enact a speedy and less costly settlement, to enable
settlement of a dispute after final award when enforcement is likely to be costly and/or time consuming.
15.
In fact it is possible for negotiation to occur
at any time that the parties consider that, given the
information now in their possession, negotiation is an
acceptable alternative to whatever dispute resolution
process they are currently in (assuming they have kept
an eye on the ever changing circumstances and its effect on their BATNA).
16.
The requirement for a successful negotiation
is a willingness to communicate and a desire to settle.
Much is made of various negotiation strategies; two
main strategies have emerged: competitive and problem solving. Simply, they treat the negotiation process
as either a contest, where the object is to give as little
as possible and gain as much as possible or as a joint
problem to be solved with a joint solution.
17.
It is suggested that the competitive approach,
makes the finding of a mutually acceptable solution
much more difficult5. A problem solving approach is
much more likely to result in a mutually acceptable outcome but requires much more openness and trust6.
2.2.4Advantages
18.
Chief among the advantages of negotiation is
cost. While nothing in dispute resolution is completely
cost free (with the possible exception of avoiding it in
the first place, although this can also entail a cost arising from the additional initial work necessary) negotiation as a central part of human negotiation is at least
familiar and fits in with the general processes of life.
19.
Negotiation is also almost certainly the quickest
form of dispute resolution. Dispute is not part of the
productive operations of any commercial organisation;
even an organisation specialising in dispute services,
does not gain from disputes with its customers. The
speed inherent in productive negotiations comes from
the familiarity with the subject and personnel involved
in the dispute and the general access to the subject
and each other. Speed has two benefits: the ability to
recognise and react quickly to disagreements or disputes and resolve them before they grow and the clear
benefit of being able to reach a resolution enables you
to concentrate on the purpose at hand. Time spent
disputing is non-productive and wasteful.
deferential approach is taken. The danger presented by
these differences can be obscure and a serious problem
for the unwary.
20.
The parties are face to face (figuratively if not
always literally), a position that they inhabit throughout
their normal dealings. This can carry great advantages
in: familiarity with each other aiding communication,
familiarity with the subject of the dispute and the minutiae of its gestation (which will, if nothing else, inform
the discussions). Familiarity with the process, the
individuals, organisations and the subject will increase
the options for a settlement – providing that the parties
wish to settle.
3MEDIATION
21.
Flexibility is inherent in negotiations; the parties, while they may have to make efforts to meet and
discuss, are not at the mercy of a third party organisation or individual for the timing of their discussions. Indeed, it is not necessarily a requirement of negotiations
that they meet at all. Negotiations are flexible enough
to be carried out by telephone, conference call, internet
or correspondence.
22.
The negotiations are inherently private, unless
the parties choose otherwise; there is no automatic access to the substance of the negotiations by the outside
world.
2.2.5Disadvantages
23.
Nothing is perfect and negotiation is no exception. As is often the case the strongest advantages
can be the source of the greatest weaknesses, and
while lower cost is always a better option (all things
being equal), flexibility and speed can be double edged
swords.
24.
Speed is normally a positive thing in any dispute resolution process (see above); however; when
it comes at the expense of a fair hearing of both sides’
views and therefore the opportunity for each to come to
an internal resolution of the dispute, dissatisfaction and
resentment is likely to be the result. If a party cannot
reconcile the outcome internally the dispute can re-ignite.
25.
In the same vein flexibility can be misused by
one party to the detriment of the other. Speed – in the
form of ambush – and power in the negotiations can
lead to an unbalanced settlement7. The inherent flexibility of negotiation means that it is essentially unregulated, and in the absence of regulation the natural power of one party can be used to influence the settlement
to the detriment of the other, leading to resentment and
perhaps difficulty in enforcement8.
26.
Negotiations, while normally private, are not
privileged unless agreed to be so. It is possible for the
substance of the negotiations to be used subsequently
and it is also entirely possible for them to create binding circumstances that restrict the later actions of the
parties9.
27.
Negotiation can end as quickly as they begin.
As a consensual process the parties to the negotiation
can leave at any time and as a very personal process,
cultural differences can also have a very large effect on
the possibility of success any negotiations. As communication is to a large extent non-verbal10, relative
cultural differences can be devastating to successful
communication even when the most conciliatory and
3.1
WHAT IS MEDIATION?
28.
Mediation is a noun for the verb to mediate; it
means that a third party attempts to settle a dispute
between two – or more – other parties; it can also refer
to a medium for a process or effect 11.
29.
Mediation is not a recent phenomenon, evidence of mediation has been found in the records of
many ancient societies including the Ancient Greeks
and Romans12, and is used in China to the present
day13. There appears to be considerable evidence for
the development of mediation in many human societies
independently14.
30.
It is possible, when considering one’s own experiences, to recall incidents of mediation throughout all
walks of life: from the neutral third party intervening in
a dispute during a ball game in a children’s playground
to friendly (and perhaps not so friendly) differences of
opinion in the work place.
31.
Formal mediation15 has become an attractive
alternative to the conventional route of dispute resolution through the courts16. This reaction mainly to
the ever increasing cost and time of litigation and the
disenfranchisement of the general populace that this
caused17. A similar, if much later, point was made in
support of ADR (and by implication mediation) in general by Lord Woolf and his report ‘Access to Justice’18.
32.
The Centre for Effective Dispute Resolution’s
original definition of mediation was: “… a voluntary, non-binding, private dispute resolution
process in which a neutral person helps the parties try
to reach a negotiated settlement”.
33.
This was revised on the 1 November 2004 to:
“… a flexible process conducted confidentially in which
a neutral person actively assists parties in working
towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision
to settle and the terms of resolution.”
34.
I include both as they each capture an element
of mediation that is perhaps lost in the other. Formal mediation is a voluntary, non-binding but flexible
process for the resolution of disputes. A third party is
engaged by the parties to assist them to negotiate in
a non-adversarial way; however the parties maintain
equal control of the process, the decision on whether
to settle and its terms. The mediator, helps to create
an atmosphere within which the parties can communicate, helps to break deadlocks, avoid direct destructive
confrontation and ultimately gives written form to the
substance of the parties’ agreement. Mediation is often
referred to, quite rightly, as assisted negotiation, and
this essence neatly captures both the form and function
of mediation.
3.2
THE MEDIATION PROCESS
35.
Mediation can be undertaken in any kind of forum, although in the authors experience the more complex the dispute the easier it is to resolve if the parties
are in the same physical space at the same time19.
36.
Mediation is, at its heart, a process of communication that is assisted by a third party and as
such requires only that the parties wish to settle and a
secure medium for communication. The communication
can take place directly between the parties, with the
mediator observing and assisting the flow and constructiveness of the communication; it can occur directly
between the mediator and either party, alone or as a
group. It is rare that only one approach is used, generally all options are used as the dispute, moves through
the various stages; the more contentious issues often requiring separate caucuses, the issues where the
parties are not in fact too far apart are often concluded
in face to face sessions with the mediator chairing the
discussions.
37.
While the author has been involved in mediations as conference calls and as electronic mail exchanges, it is the traditional single venue over a single
or series of days that is most common for the most
complex of disputes.
38.
Attention to the venue can bring many benefits;
a comfortable and well served environment is much
more conducive to agreement than a cramped and unwelcoming one. The process of mediation, particularly
those with separate caucuses, can involve long periods
of not much happening. If boredom or frustration set in
it can have a marked effect on morale and the possibility of agreement20.
39.
It is often helpful when preparing the agenda for the mediation to look carefully at the positions
of the participants and construct a running order that
places early emphasis on the contentiousness of the
matters. After the opening statements, beginning face
to face discussions on subjects that the parties can,
without much effort, agree on can help to create an
atmosphere on which the parties are agreeing. This will
often gather its own momentum and the participants
develop a mindset of agreeing which obtains its own
momentum. The mediator can use this momentum to
bring the parties along with the general flow of agreement. Even when serious sticking points or disagreements are reached, it is possible to skip them with an
agreement to consider more fully in a recess period and
come back to it later; this is still agreement and can be
helpful in maintain an atmosphere of cooperation.
3.2.1 Conditions for Mediation
40.
Mediation can, like negotiation, breakout at
any time; it is a consensual process, which in essence,
requires only the consent of the parties to take place.
If during the process of disputing in court, arbitration or
any other formal dispute resolution forum, the parties
decide to attempt to settle their dispute with the assistance of a mediator, they are free to do so21.
41.
The settlement of disputes by mediation is actively encouraged by most states across the world22.
42.
Given the prevailing support from various
bodies (see above), a large part of the legal community (see notes 14, 15 and 16 above) and the perceived
speed and low cost of the mechanism it is small wonder that mediation has grown in popularity with hard
pressed litigators
43.
The benefits of mediation to overworked court
systems have not been lost on the public funders of
judicial services across the world. The reduction in
drain on the public purse by the simple expedient of
encouraging parties to settle their differences – in a self
funding process – while improving access and speed of
resolution is most likely seen as a vote winner.
50.
Cost is in the direct control of the parties; their
desire to settle, their cooperation with the mediator and
the process, can make mediation the least costly of the
formal ADR mechanisms.
44.
It is not unusual during the preparation and
disclosure stages of litigation for the parties to become
more open to settlement. These stages are very much
akin to the conceptualisation phase of negotiation,
albeit that the communication has been compelled by
the dispute resolution forum. The knowledge gained
about the other party’s position and your own relative
strength, can often leads to the right conditions for mediation to become a desired option. This is assuming
that the information is received and understood and its
effect on each party’s relative BATNA assessed.
51.
The process is inherently privileged; in fact
there is much evidence that, for the process to work,
privilege is essential24. Parties must be free to explore
all areas of the dispute and any potential solution,
however unpalatable they may first seem. For a party
to be able to use the commercial imperative to settle at
a level far below that which they may normally expect,
and which they would be forced to pursue in normal
third party determination ADR, they must be protected
form the consequences that would normally flow from
the expression of the willingness to settle at a particular
level.
45.
Mediation, in the modern form, is more formal
than negotiation; the formalisation having much to
do with its acceptance and promotion by institutional bodies who are concerned with the robustness of
the process and the regulation of mediators. Courts
in particular are keen to ensure that something seen
as an adjunct to the court process should be suitably
formal and that its conduct generates the appropriate
confidence in its users and the public. If it is going to
receive official backing, and be successful in providing
saving in the public purse, it must engender confidence
in the wider (voting) public.
3.2.2Advantages
46.
Mediation in general has a number of advantages over third party resolution of disputes. It is consensual, flexible, fast (comparatively) and low cost (again
comparatively); as the control of the process and its
resolution does not lay with external bodies, but with
the parties they are, in my experience, more comfortable with the process.
47.
The process requires consent at all points to
succeed. Even in the case of one party having to enforce an agreement to mediate23. A prior agreement
to mediate clearly has to exist for the enforcement to
succeed; agreement that would have required consent.
The consent can be the basis for agreement (see paragraph 39 above regarding the use of the running order
and the spirit of agreement).
48.
The process is flexible; in essence, while preparation is necessary, it is possible to arrange a mediation
hearing within a few weeks, and even less for conference call and video conference versions. The degree of
flexibility is generally only limited by the parties’ willingness to cooperate (given suitable support from the
mediator). Flexibility also extends to the way and how
much of the dispute is settled. It is perfectly acceptable
for the parties to remove many of the items in dispute
by agreement in mediation, even if some remain for
third party determination.
49.
This flexibility is also reflected in the speed with
which things can be settled. A carefully worded settlement agreement can, if it deals with all aspects of the
dispute settlement, monitoring of the agreement and
the ability to repair any problems in the compliance
procedures, can maintain the momentum for a successful conclusion, without the need for time consuming
enforcement proceedings. This is in addition to the
general benefit of speed that comes with not being dependant on a third party institution or statutory determiner.
52.
In commercial disputes parties will be – or
should be – acutely aware of the value of money. A
settlement now can be worth much more than one in
six months or two years from now. And this does not
just mean the inflationary net present value either;
the finance costs of money, assuming you are able
to access it, is much higher than the inflationary cost
and the commercial cost of cash flow difficulties and
the damage that does to good will and your ability to
exploit opportunities and avoid other disputes, can be
devastating. All of these things can make an early settlement much more valuable than any pure pursuit of
‘the right answer’.
53.
In an international setting, careful selection of
the mediator can assist enormously with cultural differences between the parties. The purpose of the mediator is to facilitate communication and a common understanding of the cultures involved can help the parties
avoid any of the pitfalls of cultural misunderstanding.
3.2.3Disadvantages
54.
Mediation is not without cost; and the cost is
not cheap. Mediation can be, and normally is, much
more cost effective than other forms of dispute resolution; but only if it succeeds. Should you fail to settle all
mediation will have done is to delay the final resolution
of the dispute and caused the expenditure of a lot of
money to no end.
55.
The process is consensual and therefore vulnerable to breakdown at any time even with the assistance
of the mediator to avoid it. (See paragraph 53 above
for the advantages of a skilful mediator in avoiding the
breakdown.)
56.
In my experience mediation is also vulnerable
to misuse by parties wishing to delay settlement. It is
particularly common in construction and engineering
disputes for a stronger party to attempt to delay settlement and bring considerable commercial pressure on a
disputant to gain a more favourable settlement or even
avoid the debt altogether by forcing the failure of the
other party25.
57.
Mediation is non-binding until a settlement is
reached; even then if the agreement is not honoured
(or fails to properly deal with changes in circumstances
or unintended consequences) it will need to be enforced, which will generally involve a court. Some of
the pain of this can be avoided by ensuring the reasonableness of the agreement, having the a court issue the
agreements as an order as in court annexed mediation
or by turning the mediation into an arbitration and having the agreement issued as an arbitration award.
4COMPARISON
58.
When used in the search for a solution to a dispute, negotiation and mediation share much common
ground; indeed mediation is essentially assisted negotiation. However, they are different and, it is suggested, most appropriate in different circumstances and at
different degrees of dispute; the less able parties are to
communicate the more likely they are to need mediation.
4.1.1Cost
59.
Negotiation should in most instances, be
cheaper than mediation, assuming that a settlement
is reached; for this to not be the case mediation would
have to reach a conclusion much faster than the equivalent negotiations, sufficient to offset the additional cost
of mediation’s mediator, support staff, venue, preparation time, agreement drafting etc.
4.1.2Speed
60.
Negotiation is quicker than mediation in most
cases. It requires no prior preparation26 or even a venue. Mediation requires some preparation; the mediator
will need summaries of the dispute and supporting information, the venue and support facilities will need to
be arranged and the process of mediation – particularly
with separate caucuses – is more clumsy and time consuming than direct negotiation. Of course the mediator
as well as all of the parties representatives will need to
be available.
4.1.3Flexibility
61.
Negotiation is the most flexible of all the ADR
mechanisms; it is completely under the control of the
parties. Mediation while still flexible is a process which
the parties are undertaking in the presence of a third
party. Each party is able to disengage at any time, like
negotiation, but the slight sacrifice which must surely
occur in mediation with the presence of a third party, is
the reason that mediation can work when negotiation
fails. The mediator, helping the parties to communicate, must have some level of control or influence (otherwise they would serve no purpose) even if it is just in
the mind of the participants.
4.1.4 Party Autonomy
62.
The parties have a great deal of control over
the process of mediation, although not complete control. The availability of the mediator, how they exercise
their influence or the impression they create by making
suggestions or just asking questions will vest some element of the process outside the parties. Negotiation is
wholly and completely under the control of the parties.
4.1.5 Settlement and Enforcement
63.
Settlement in mediation is arrived at, with some
assistance, by the parties, but the record of the agreement is made by the mediator and is therefore independently recorded and by a professional who should
be aware of the requirements to make a binding and
enforceable agreement. Negotiation is at the mercy of
the ability of the parties to properly record it, assuming
that the agreement is actually what it seems – the propensity for participants to hear what they want to hear
and ascribe meanings to an agreement that are derived
for their own point of view only is great.
5CONCLUSIONS
5.1
16.
17.
SUMMARY OF CONCLUSIONS
64.
Negotiation should always be the first step in
any dispute resolution. It is a quick, cost effective
and flexible form of self help and the vast majority of
disputes can be settled by this method. It does not
always work however. Communication can be difficult
if each party does not hear the other or have a realistic
understanding of their true position. Personal antagonism and the weight of past dealings and bad feeling
can prevent the clear communication and compromise
necessary for settlement.
65.
When negotiation fails mediation can be an effective method of settlement. The assistance provided
by a more formal procedure, albeit one the parties are
still in majority control of, can help re-establish communication and allow each party to gain a more accurate
and complete picture of the whole of the dispute; a
necessary pre-requisite for the satisfactory and lasting
settlement of any disagreement, whichever method
resolution is chosen.
18.
19.
20.
21.
22.
23.
24.
25.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
Definition from the Oxford University Press, Compact Oxford
English Dictionary.
Best Alternative To a Negotiated Agreement – the cost of not
agreeing.
Many commentators have postulated that negotiation contains
multiple stages; a good summary is provided by Roberts and
Palmer in Dispute Processes: ADR and the Primary Forms of Decision Making, Chapter Five Pages 126 and 127. An interesting
alternative is also given by Christopher W Moore Ph.D.
Definite figures for the settlement of disputes by agreement
are rather thin on the ground, but anecdotal evidence suggests that two thirds of litigations and arbitrations settle before
judgement or award. My own experience bears this out.
The view of a dispute as a competition over a finite resource
in a zero sum game does tend to breed a lack of communication
and trust. For fear of loosing parties are less likely to explore
all outcomes and therefore less likely to find the one most
acceptable to both.
This method is more likely to discover the most acceptable
outcome and explores more solutions as more information is
exchanged and the permutations for the solutions are greater.
It is also more likely to be expeditious as less time is spent
hiding your position in an attempt to gain an advantage. Parties using this approach are however more vulnerable to being
misled.
Unbalanced in the terms of the party’s perception of what is
fair and acceptable that is, not in the sense of a necessarily just
or correct decision: in negotiations you do not always look for
the right answer.
Ideally it should be obvious to the parties that, while they may
not like the settlement, they can live with it as the least bad option; in this event the settlement will normally be self enforcing
– the parties follow it through.
For a discussion of the English Law principle of privilege see
Hoffman LJ in Muller v Linsey & Mortimer [1996] P.N.L.R. 74].
R A Hinde (Editor); D M MacKay – ‘Non Verbal Communication – Part A the Nature of Communication; Formal Analysis of
Communicative Processes’,Cambridge University Press, 1975]
Definition from the Oxford University Press, Compact Oxford
English Dictionary.
Mediation is mentioned by Homer in the Odyssey (9.112); see
also Harter-Uibopuu – Acient Greek Approaches Toward Alternative Dispute Resolution.
See Dispute Resolution by Non-Official Institutions in Traditional China – Arbitration August 2006 p178.
For a summary see WHAT CAN WE LEARN FROM COMPARING
MEDIATION ACROSS LEVELS by Tom W. Milburn –published by
the Network for Peace and Conflict Studies, George Madison
University
By which I mean mediation which follows a set of formal rules
set out by bodies such as International Chambers of Commerce,
London Court of International Arbitration, World Intellectual
26.
Property Organisation, the American Arbitration Association or
Court Annexed / administrated mediation.
See ‘Alternative Dispute Resolution: Panacea or Anathema?;
Harry T Edwards – Harvard Law Review Vol. 99:668.
See ‘Alternative Dispute Resolution Processes within the
Framework of the World Wide Access-to-Justice Movement’;
Mauro Cappelletti: The Modern Law Review, Vol 56, Nr3, May
1993; see also ‘Getting Disputes Resolved:Designing Systems
to Cut the Costs of Conflicts’ William Uri, Jeanne M Bret and
Stephen Goldberg, 1988.
ACCESS TO JUSTICE Final Report - By The Right Honourable
the Lord Woolf, Master of the Rolls - JULY 1996.
Although I have also found the use of separate caucuses with
the mediator alone to be more beneficial than the ‘mediator as
referee’ approach to mediation; not least because by the time
the parties get to mediation their desire to conclude the dispute
is exceeded only by their dislike for the other party or parties.
Controlled distance can be beneficial.
Spike Milligan in his war memoirs of the North African campaign of the Second World War, characterised war as long
periods of boredom punctuated by short periods of extreme violence. It has often occurred to me during mediations that this
description is apt for mediation, if you substitute agreement/
disagreement for violence (well most of the time anyway).
Although it is advisable, if not essential, that the particular
forum is notified of the parties’ intention if only to stay the
proceedings if the mediation is to be protected (English CPR
r.26.4).
See notes 13 to 16 inclusive above.
See Kinstreet Ltd v Balmargo Corp [1999] unreported and Cable & Wireless Plc v IBM UK Ltd [2002] 2 All E.R. 1041 (Comm)
See When Does ‘Confidential’ Mean Confidential? An Important
Development in the Law of Mediation and the Without Prejudice
Rule – By Hew R Dundas; Arbitration August 2007 p335
English Law, while recognising the benefits of mediation and
encouraging it in terms of costs penalties, does so for the
‘unreasonable refusal to mediate’. Where the parties have, in
effect, exhausted the negotiation process and mediation would
bring no benefits and just result in cost and time penalties, it
is recognised that mediation need not necessarily be a viable
option.. See Halsey v Milton Keynes General NHS Trust [2004]
EWCA Civ. 576.
Although these are advisable if a speedy and effective outcome is desired.