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I was previously discussing the obstacles in the way of promoting mediation when the main agents of its promotion, namely mediators, have insufficient mastery of their own profession. If he who is called upon to clarify his métier to potential customers does not fully understand its concepts, methods, and techniques, any attempt at promoting it is nothing more than pure utopia. Such a state of affairs is due, on the one hand, to the poor performance of mediation trainers, who are unable to accurately convey their experience and successfully turn it into knowledge and skills, while on the other hand, to the self-sufficient mind-set of some of the training attendants, who claim to ‘know’ what’s what in mediation from the start, and who therefore deem further training in this sense unnecessary. We’ll expand further on this subject in a future post.

A mediation trainer myself, I realized that one of the main barriers in the way of a proper understanding of mediation as a way to resolve disputes is the challenge of accurately defining mediation and the role of the mediator. The other day, while I was holding the mediators’ training, I asked my trainees two questions: what kind of disputes they face at their workplace and what they would expect from a mediator, if they employed one to solve said disputes. I got multiple answers to my second question, all of which fitted into a small number of categories: 1. To provide/offer solutions to the parties involved; 2. To decide which party is in the right and get the other party to yield; 3. To convince the parties to make peace (meaning give up their dispute and avoid the subject in the future). There was also a fourth category, of those who truthfully admitted they did not know the answer. I realized there and then how great a gap there was between the message that we, mediators, are generally trying to convey to the public, and how much of that message is understood at this time. It becomes clearer now why potential beneficiaries are reluctant to use mediation – the signals that reach them from mediators are mixed and hence, less reliable. Subsequently, I have set my mind to devote a series of posts to clarifying the two crucial aspects of mediation marketing: what is mediation and which is the mediator’s role in the resolution of a dispute.

Anyone who has ever read a mediation course is already familiar with the standard definition(s) of mediation. I will list some of the most popular meanings below, for whoever is reading this post and has not yet had the opportunity of flicking through such a course:
1.    Mediation is a way to amicably resolve conflicts with the help of a third party, who specializes in the field of mediation, and who acts neutrally, impartially, confidentially, and with the informed consent of the conflicting parties (Law 192/2006, art. 1 paragraph 1).
2.    “Mediation is the intervention in a negotiation or a conflict of an acceptable third party who has limited or no authoritative decision-making power, who assists the involved parties to voluntarily reach a mutually acceptable settlement of the issues in dispute”  (Christopher W. Moore, The Mediation Process).
3.    “Mediation is a process in which an impartial third party helps disputing parties to work out an agreement. The disputants, not the mediator, decide the terms of this agreement”  (Beer&Stief, The Mediator’s Handbook).
4.    “‘Mediation’ means a structured process […] whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator”  (Directive 2008/52/EC of the European Parliament and of the Council).

Noticeably, all these definitions share certain common features:

1. The parties involved in the conflict are the decision-making authorities and also the negotiators of a mutually acceptable solution, and also

2. In their negotiation, the parties are assisted by a mediator who has no decision-making power.

All good so far, but what does it all mean? The definitions above are elegant, academic, and grasp the essence of mediation as an alternative conflict resolution. However, they cannot, for whatever reason, transmit this essence to those who read them.

To better understand mediation, let us imagine we are involved in a conflict. We have a bone to pick with a neighbor, friend, work mate, or other. We are trying to get something we want from this person, by having a discussion with them about it. This action is called negotiation. Let’s say it didn’t work, but we don’t want someone else to make the decision for us (because either we don’t have enough faith that their decision would best suit our interests; or maybe we just got so upset with the other party that we do not want to ever speak to them again). We then turn to a professional who can help us negotiate (or rather help us overcome the previous difficulties). Such a professional goes by the name of mediator, while the negotiation taking place between us in the presence of said professional is called mediation.

In other words, mediation is negotiation in which the parties are aided by a professional in the field, in order to reach a solution that best suits the interest of both. The accent falls on the word “negotiation”, as it is key to understanding the mediation process, its advantages, limitations, and its voluntary and confidential nature – aspects to which I shall return in future blog posts.

Until then let us summarize what we have discussed so far:
1.    Mediation is not a kind of parallel justice in which the mediator decides who is right and who isn’t, on whose side the law is and who gets to pay damages;
2.    Mediation does not mean the parties giving in to the perseverance of the mediator for them to make up, give up the object of dispute and their legitimate claims;
3.    Mediation is not a method used by a third party (the mediator) to convince two parties to accept a solution which the former deems appropriate and suitable;
4.    Mediation is negotiation between two parties who are helped to overcome the obstacles standing in the way of finding a mutually beneficial solution by a third party (the mediator), who cannot and who has no right of imposing any kind of solution.

Undeniably, such a definition raises a question of utter importance for the promotion of mediation: if the mediator does not provide solutions, does not judge, does not convince, and does not make peace, what is it that she/he actually does to help the parties resolve their dispute? The answer – in my future post. Until then, hopefully we’re clear on the definition of mediation as a way of resolving conflicts.