Mediation Essay

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Mediation  is a form  of dispute  resolution  where  a third party—an impartial mediator—assists two or more persons in finding a viable solution to problems. There are distinct differences between mediation and litigation. An obvious distinction is that the mediator, unlike a judge, has no say in the outcome of the case. Litigation is a process in where courts impose binding decisions in a determinative  process. Now, more than ever, mediation has found widespread use in the realm of business, especially in the field of international law.

Generally, one can define mediation  as a simple, informal  approach  to resolving disputes.  Litigation, by contrast,  entails a more complex proceeding. No formal rules of evidence or procedure control mediation: the parties agree to the terms. Although  these two processes—litigation and mediation—sound very different, both  are used to resolve disputes.  Mediation often aims at resolving problems associated with litigation: high costs, excess duration,  and the complexity of the judicial process. Still, mediation  does not result in binding agreements,  unless the parties agree to it.

Arbitration  is not  uncommon when  engaging in mediation. Mediation has proven to be effective when paired  with arbitration or even binding  arbitration. In these cases, the mediator  becomes an arbitrator, converting mediation into arbitration after the parties have been unable to come to an agreement  through mediation. As a result, the arbitrator seeks additional evidence from witnesses, unlike a mediation proceeding, where  witnesses  are not  called upon  by a mediator.  Sometimes the purpose of mediation  is to improve relationships among parties who will have to deal with each other again. Other times mediation  is for the sole purpose of helping the parties learn how best to handle conflicts in the future.

Voluntary  agreements  by the  parties  are  central to the mediation  process. Consequently,  a mediator should  conduct  the  process  to maximize its voluntariness. Parties to mediation  can decide whether to submit  their  dispute  to mediation  prior  to arbitration.  Conversely, parties  may also decide  to forego mediation  and  immediately  delve  into  arbitration. For instance,  the parties may decide that  if the dispute cannot be settled through  negotiation, they will first try to settle  the  dispute  by mediation  in good faith. Additionally, the parties may agree that the proceeding be administered by the American Arbitration Association under its Commercial Mediation Procedures. But if the parties immediately want to adopt mediation as a part of their contractual dispute settlement  procedure,  they can insert  a mediation  clause into  their  contract  in conjunction  with  a standard arbitration provision.

The mediator  plays an integral role; yet, his or her role is attenuated. This, of course, varies from case to case. A mediator works to help the parties fashion an agreement. But he or she does not have the authority to make a binding decision or award—that is, a mediator has no power to impose a solution. The mediator, therefore, serves as a catalyst between opposing interests, attempting  to define issues and eliminate obstacles to communication. On the one hand, it can be said that the stronger the parties’ need for settlement, the  more  leverage the  mediator  has. On  the  other hand, the weaker the parties’ need for settlement, the more the mediator  must work to create the perception  of greater  need; moreover,  the  mediator  must create external leverage by way of incentives. Finally, the mediator  helps the parties draft an agreement. If signed, a legally binding contract is formed.

Mediation  is used in the United  States and other countries   for  handling   divorce  and  child  custody cases. Additionally,  it is used  for interpersonal disputes—between employees, family members, and even friends—and has gained popularity with environmental and international disputes.  As mediation  continues developing, an increasing trend  in the public and judicial  spheres  toward  using  mediated  negotiation as an alternative to more traditional  means of dispute resolution  will become even more prevalent. Accordingly, mediation  will continue  gaining widespread use and may eventually replace many of the formal judicial processes used in many countries today.


  1. Nadja Alexander, Global Trends in Mediation, 2nd (Kluwer Law International, 2006);
  2. James J. Alfini, Sharon B. Press, Jean R. Sternlight, and Joseph B. Stulberg, Mediation Theory and Practice (Matthew Bender and Co., 2006);
  3. Klaus Peter Berger, Private Dispute Resolution in International  Businesss (Kluwer Law International, 2006);
  4. Kenneth Cloke, Mediating Dangerously: The Frontiers of Conflict Resolution (Jossey-Bass, 2001);
  5. Barry M. Goldman et al., “The Role of Ideology in Mediated Disputes at Work: A Justice Perspective,” International  Journal of Conflict Management  (v.19/3, 2008);
  6. Christopher Moore, The Mediation Process: Practical Strategies for Resolving Conflict, 2nd ed. (Jossey-Bass, 1996);
  7. Alice F. Stuhlmacher and Melissa G. Morrissett,  “Men and Women  as Mediators: Disputant  Perceptions,” International Journal of Conflict Management (v.19/3, 2008).

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