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JOSE RIZAL UNIVERSITY

ALTERNATIVE DISPUTE RESOLUTION

MEDIATION

HISTORY

The activity of mediation appeared in very ancient times. Historians located early cases in
Phoenician commerce. The practice developed in Ancient Greece (which knew the non-marital
mediator as a proxenetas), then in Roman civilization. (Roman law, starting from Justinian's
Digest of 530 - 533 CE) recognized mediation. The Romans called mediators by a variety of
names, including internuncius, medium, intercessor, philantropus, interpolator, conciliator,
interlocutor, interpres, and finally mediator.

Some cultures regarded the mediator as a sacred figure, worthy of particular respect; and the
role partly overlapped with that of traditional wise men or tribal chief. Members of peaceful
communities frequently brought disputes before local leaders or wise men to resolve local
conflicts. This peaceful method of resolving conflicts was particularly prevalent in communities
of Confucians and Buddists.

Mediation, as used in law, is a form of alternative dispute resolution (ADR), a way of resolving
disputes between two or more parties with concrete effects. Typically, a third party, the
mediator, assists the parties to negotiate a settlement. Disputants may mediate disputes in a
variety of domains, such as commercial, legal, diplomatic, workplace, community and family
matters.

The term "mediation" broadly refers to any instance in which a third party helps others reach
agreement. More specifically, mediation has a structure, timetable and dynamics that
"ordinary" negotiation lacks. The process is private and confidential, possibly enforced by law.
Participation is typically voluntary. The mediator acts as a neutral third party and facilitates
rather than directs the process.

In addition to dispute resolution, mediation can function as a means of dispute prevention,


such as facilitating the process of contract negotiation. Governments can use mediation to
inform and to seek input from stakeholders in formulation or fact-seeking aspects of policy-
making.

Mediation in general is one of the several approaches to resolving disputes. It differs from
adversarial resolution processes by virtue of its simplicity, informality, flexibility and economy.
However, not all disputes lend themselves to mediation. Success is unlikely, unless:
1. All parties are ready and willing to participate
2. All have legal representations
3. All parties are of legal age and are competent to make decisions.

The term Mediation broadly refers to any instance in which a third party helps others reach
agreement. It has a timetable, dynamics that ordinary mediation lacks. The process is
confidential, possibly enforced by law. Participation is merely voluntary. The mediator acts as a
neutral third party and facilitates rather than directs the process.

Mediators use various techniques to open, or improve, dialogue between disputants, aiming to
help the parties reach an agreement. Much depends on the mediator's skill and training. As the
practice gained popularity, training programs, certifications and licensing followed, producing
trained, professional mediators committed to the discipline.

What is mediation?

Mediation is used to settle disputes. When two parties are unable to settle a dispute, they will
often use mediation in order to reach an agreement. When two parties agree to use mediation,
a neutral third party will work with the two parties in dispute in order develop a settlement
agreement. The neutral third party is known as the mediator.

What is a Mediator?

A mediator is a neutral third party who is selected by parties in dispute to help settle a dispute.
Both parties mutually select the mediator. A mediator does not need to be a lawyer but is
often an expert in the field in which the parties are claiming a dispute.

What is a mediation hearing?

Once parties in dispute agree on mediation, they select a mediator. The mediator will then
conduct a mediation hearing. During a hearing, both parties may be brought together in order
to work on an agreement or a mediator may use shuttle diplomacy. Shuttle diplomacy is a
technique used by a mediator where s/he goes back and forth between parties with proposals
in order to reach an agreement. If an agreement is made, the parties will sign a settlement
agreement.

What is a settlement agreement?

As a result of mediation the parties may decide to resolve their dispute. The terms of
agreement are listed in a settlement agreement and the written agreement is signed by the
parties in dispute. Typically, the mediator facilitates the agreement but does not sign the
agreement.

What is the difference between mediation, arbitration and litigation?

Litigation is the process of going to court in order to solve a dispute. Going to court is usually
very costly and time consuming process. The longer a dispute lasts, the more the parties pay in
legal fees. Also, because litigation is heard by a judge and or jury it is considered a public matter
and is open to the public. The judge makes the decision that resolves the dispute not the
parties.

Arbitration utilizes a neutral third party to hear a dispute between parties. The hearing is
informal and the parties mutually select the arbitrator. The arbitrator is retained to decide how
to settle the dispute and the decision is final and binding on the parties. Arbitration is more
cost efficient and quicker than litigation but it is the arbitrator, not the parties, who renders the
terms and conditions of the dispute resolution.

Mediation is a much quicker process than litigation or arbitration. The parties also have more
control over the final resolution. The parties mutually select the mediator and the mediator
helps the parties resolve the dispute in a cost efficient manner.

Benefits of Mediation:

Cost - While a mediator may charge a fee comparable to that of a lawyer, the mediation
process generally takes much less time than moving the case through the standard legal
channels.

Confidentiality - While court hearings are public, mediation remains strictly confidential. No
one but the parties in dispute and mediator knows what happened.

Control - It increases the control of the parties over the resolution.

Compliance - Because the result is attained by the parties working together and is mutually
agreeable, compliance with these mediated agreement is high.

Mutuality - Parties to mediation are typically ready to work mutually towards a resolution.
The fact that parties are willing to mediate, means they are willing to move their positions.

Support - The mediators helps the parties to think outside the box for possible solutions to
the disputes, broadening the range of possible resolutions.
PROCESS OF MEDIATION

In Mediation, two or more people come together to try to work out a solution in their problem.

A neutral third person, called the mediator, is there to help them along. Unlike a
judge or an arbitrator, the mediator does not take sides or make decisions.

It is less formal than a trial or arbitration, but there are distinct stages to the
mediation process.

Stage 1: mediators opening statement

After the disputants are seated at a table, the mediator introduces everyone, explain
the goals and rules of the mediation, and encourages each side to work cooperatively
toward a settlement.

Stage 2: disputants opening statements

Each party is invited to describe, in his or her words, what the dispute is about and how
he or she has been affected by it, and to present some general ideas about resolving it.
While one person is speaking, the other is not allowed to interrupt.

Stage 3: private caucus

The private caucus is a chance for each party to meet privately with the mediator to
discuss the strengths and weakness of his or her position and new ideas for settlement.

Stage 4: Joint Negotiation

After caucus, the mediator may bring the parties back together to negotiation directly.

Stage 5: Closure

This is the end of the mediation. If an agreement has been reached, the mediator may
put its main provisions in writing as the parties listen. If no agreement was reached, the
mediator will review whatever progress has been made and advise everyone of their
options, such as meeting again later, going to court, or going to arbitration.