Michael Brogan

Mediation Law and Practice

Part I. The Practice of Mediation: 1. Mediation: its history and definition 2. How to mediate 3. The theory and philosophy of mediation 4. Specific types of mediation 5. Who is the mediator? 6. The ethics of mediation Part II. The Law of Mediation: 7. Mandatory mediation 8. Confidentiality 9. Settlement agreements 10. Statutory schemes 11. Mediation clauses in contracts 12. The future of mediation.

Mediation Law and Practice: Contents

Part I. The Practice of Mediation: 1. Mediation: its history and definition 2. How to mediate 3. The theory and philosophy of mediation 4. Specific types of mediation 5. Who is the mediator? 6. The ethics of mediation Part II. The Law of Mediation: 7. Mandatory mediation 8. Confidentiality 9. Settlement agreements 10. Statutory schemes 11. Mediation clauses in contracts 12. The future of mediation.

Mediation Law and Practice by David Spencer

Part I. The Practice of Mediation: 1. Mediation: its history and definition 2. How to mediate 3. The theory and philosophy of mediation 4. Specific types of mediation 5. Who is the mediator? 6. The ethics of mediation Part II. The Law of Mediation: 7. Mandatory mediation 8. Confidentiality 9. Settlement agreements 10. Statutory schemes 11. Mediation clauses in contracts 12. The future of mediation.

Mediation Law and Practice: List of tables and figures

Part I. The Practice of Mediation: 1. Mediation: its history and definition 2. How to mediate 3. The theory and philosophy of mediation 4. Specific types of mediation 5. Who is the mediator? 6. The ethics of mediation Part II. The Law of Mediation: 7. Mandatory mediation 8. Confidentiality 9. Settlement agreements 10. Statutory schemes 11. Mediation clauses in contracts 12. The future of mediation.

Mediation Law and Practice: Frontmatter

Part I. The Practice of Mediation: 1. Mediation: its history and definition 2. How to mediate 3. The theory and philosophy of mediation 4. Specific types of mediation 5. Who is the mediator? 6. The ethics of mediation Part II. The Law of Mediation: 7. Mandatory mediation 8. Confidentiality 9. Settlement agreements 10. Statutory schemes 11. Mediation clauses in contracts 12. The future of mediation.

Mediation Law and Practice: THE LAW OF MEDIATION

Part I. The Practice of Mediation: 1. Mediation: its history and definition 2. How to mediate 3. The theory and philosophy of mediation 4. Specific types of mediation 5. Who is the mediator? 6. The ethics of mediation Part II. The Law of Mediation: 7. Mandatory mediation 8. Confidentiality 9. Settlement agreements 10. Statutory schemes 11. Mediation clauses in contracts 12. The future of mediation.

Mediation: Its Definition and History

Introduction Mediation is a form of dispute resolution, found outside the adjudicative space of the court-room or tribunal, where parties in dispute or conflict utilise the assistance of a third-party neutral to attempt to resolve their dispute. It is different from other forms of ‘alternative’ dispute resolution – such as negotiation, conciliation, arbitration, and early-neutral evaluation – in that the third-party neutral, the mediator, is present and assigned a number of qualities that are not as evident, or strictly adhered to, in the other forms of dispute resolution. Many commentators and adherents to traditional mediation practices maintain that a mediation is comprised of five distinct philosophies (confidentiality, voluntariness, empowerment, neutrality, and a unique solution), and that without these core components the mediation is impoverished, or not a true mediation. We explore these philosophies further in Chapter 3. Why is mediation so important? Why do we use mediators and why do we mediate? Simply, many disputes cannot be resolved by the parties involved. This may be because of impasses to communication as a result of power or cultural differences between the parties. Impasses may also be due to historical factors such as a previous animosity and distrust between the parties or the absence of a relationship between the parties prior to the dispute arising. A mediator is someone who is able to assist the parties who are ‘stuck’ in their dialogue with each other to get together, communicate in a relatively polite and semi-structured way, and exchange information.

Mediation Law and Practice: Specific Types of Mediation

Introduction It is clear that the classical mediation model is a useful tool for settling disputes however, it is not always the case that there is a perfect fit between the needs of the parties and that classical model: modification to suit the interests of the parties is required (see Steer 1997). We have noted that mediation is a process that can be flexible and cater to the circumstances and needs of the parties. The differences in approach adopted in mediations in distinct settings are important, as they highlight the hybrid nature of mediation and its effectiveness when allowed to develop to fit the demands of a particular type of dispute. In this chapter we will discuss the way in which mediation can be used in seven areas of life: commercial, family, community, cross-cultural, building and construction, and health care mediation, as well as the developing area of victim–offender mediation or conferencing. Commercial mediation Commercial mediation is typified by a ‘cut and thrust’ approach, the ‘time is money’ mantra suggesting that many businesses are keen to finalise any dispute quickly and avoid the time- and money-wasting aspect of litigation. Commercial mediations are stereotypically seen to be more results oriented, with the mediator being more robust (see chapter 5) in driving the parties to an agreement. In the next extract Maureen Garwood, negotiator and mediator, interviewed 16 commercial mediators and the parties involved in mediated disputes.

Mediation Law and Practice: The Theory and Philosophy of Mediation

Introduction In this chapter we take a more theoretical view of mediation. We begin with a philosophical consideration of the key features of mediation practice. We then examine the five philosophies of mediation – confidentiality, voluntariness, empowerment, neutrality, and a unique solution – with a critical view as to what the terms mean and how central to mediation practice they are. Following that we look at the various models of mediation, and focus our attention upon the facilitative, evaluative and transformational models. We conclude the chapter with an examination of when mediation is effective and appropriate and what some of its weaknesses are. The form and function of mediation It is one thing to state that a mediation is comprised of certain basic practical components (see Chapter 2). It is another to refer to mediation in a generic way, given the variety of mediation situations and the flexibility of the process (see uses in Chapter 2). But what of attempting to distill, from the processes and variety of mediation, some theoretically-oriented perspective? In an article entitled ‘Mediation – Its Forms and Functions’, Professor Lon Fuller, noted Harvard Law Professor and self-titled ‘student of jurisprudence’, provided an analysis of mediation, ‘attempting to go beyond the generalities’ of mere description by comparing and contrasting mediation with the key components of a collective bargaining dispute (Fuller 1970–1, pp 305–39). In so doing, Fuller commented on the proper function of the mediator, and the role of mediation within broader society.