History of Mediation

Introduction

Mediation as a way of conflict resolution has existed for a long time and has been used across all cultures. It is a method of helping members of society to resolve disputes (“History of Mediation,” 2014). Though various types of tactics and experts of mediation have been named differently, the aim of this form of dispute resolution remains the same. In the field of international relations, the United States has been known as a democratic country. Therefore, it has played a crucial role in the intervention and offering of leadership to international conflicts and strained relations witnessed in various countries. The USA is famous for its efforts in ensuring that diplomatic non-judicial means are used at the local level. This essay will discuss the history of mediation in the United States. The paper will also discuss the competencies required in quality mediation, the role of the federal government in encouraging mediation, the ethical obligations of mediators, and the possibility of neutrality in the process.

History of Mediation in the United States

Mediation as the method of alternative dispute resolution emerged in the United States in the 19th century. In 1898, Congress followed the recommendations of both New York and Massachusetts to create mediation bodies that would act as tools to help prevent strikes and unrest that may adversely affect the economic development of the country (McManus & Silverstein, 2011). At that time, such special mediation agencies as the Federal Mediation and Conciliation Service (FMCS) and Board of Mediation and Conciliation for Railway Labor (BMCRL) were created (McManus & Silverstein, 2011). Both of the aforementioned organizations exist today. In addition, in the 1960s, mediation was utilized in the calming of civil disorders; however, the judicial system had to be reformed for mediation to be used more effectively (McManus & Silverstein, 2011).

In 1965, the President’s Commission on Law Enforcement and Administration of Justice (PCLEAJ) scrutinized the court system and arrived at a decision that the courts were burdened with cases. Therefore, the commission decided that it would be convenient to use mediation to resolve minor cases. PCLEAJ established that small cases involving relatives, neighbors, and acquaintances could be resolved with the help of mediators (“History of Community Mediation in the United States”, 2016). The early programs that exercised the mediation approach included the Institute for Mediation and Conflict Resolution in Manhattan (IMCRM), founded in 1975, and Columbus Night Prosecutors Program (CNPP), founded in 1971, where law students were allocated 30 minutes to solve cases. The use of mediation at that time was considered as a way of giving power to individuals and communities since the authority was perceived to be unfair, insufficient, and oppressive (“History of Community Mediation in the United States”, 2016). Thus, the establishment of mediation centers was initiated across different states, and now there are more than 500 centers with over 2000 volunteer mediators in the USA (“History of Community Mediation in the United States”, 2016).

Competencies Required in Quality Mediation

The primary objective of mediation is to help conflicting parties come to an agreement. A mediator must be competent enough to let opposing sides take part in the process voluntarily so that any party has the right to abandon the process if it considers that the negotiation is not advancing in the desired direction (“Qualities of Mediation,” 2016). Moreover, a mediator must be competent enough to enhance collaboration among parties, so that interactive sessions will assist to achieve a consensus. A mediator must ensure that communication is balanced and seek to promote regular interaction between the parties involved. A mediator should also be competent enough to guide parties and let the decision be made solely by them.

Further, a mediator must act as a facilitator that allows conflicting parties to discuss the issues that interest them while searching for a solution. Confidentiality is one of the primary requirements of quality mediation. Consequently, a mediator is expected to show the competence of not revealing the details of the mediation, unless in a court, after the mediation is complete, and for the purpose of enforcement. Besides, a mediator is to be well-informed of disputes’ details so that he/she can be in a position to guide parties where legal matters are required as well as offer advice on other aspects that might be unknown to parties. In addition, a mediator needs to act with the highest level of neutrality. Consequently, he/she must not attempt to side with any party. It is this concept that makes individuals willing to take part in the mediation process (“Qualities of Mediation,” 2016). Responsibility is another aspect that is required of a mediator. A mediator must be a self-responsible individual who asks valid and acceptable questions while, at the same time, probing in an intelligent way that does not offend any party.

Role of the Federal Government and Its Agencies in Encouraging Mediation

The federal government has been helpful in the promotion of the use of mediation as a way of solving disputes. In 1990, the federal government adopted mediation as the alternative dispute resolution mechanism, and after its termination in 1995, it was later reinstated by the Administrative Dispute Resolution Act of 1996 (Harwell, n.d.). The act, together with the formed agencies, encouraged employers to engage their workers in an intra-agency arrangement to solve disputes. It also encouraged to use other agencies’ employees as neutral mediators or to seek the services of other relevant bodies. In addition, the act permitted the use of facilities and services of the government, private organizations, and other federal agencies. According to Harwell (n.d.), by 28 U.S.C. § 651, the federal government gave mediation process priority in solving different cases, such as bankruptcy cases.

The various agencies created by the act have been in use and have helped individuals in different sectors. For instance, the Agricultural Mediation Program enabled farmers to deal with bankruptcy issues. The Department of Labor, in its turn, has been useful in the supply of mediators for conflicting parties that feel that they need a neutral body to arbitrate between them. The issues of discrimination in the workplace have been covered by organizations such as the US Equal Employment Opportunity Commission (EEOC), which ensures that conflicting issues between employers and employees are amicably solved (Harwell). These organizations help to solve problems that range from discrimination on the basis of race, color, or age, as well as other job-related aspects, such as a layoff, promotion, and hiring. These agencies act as an alternative to the court system, and their aim is to reduce the burden on the courts.

Ethical Obligations of Mediators

Mediation presupposes trust and goodwill; therefore, a mediator is supposed to have high moral values. Besides, self-determination is important in mediation since it is the driving force that makes parties feel comfortable and freely engage in the process. Moreover, neutrality is another crucial factor, which means that a mediator must exercise a high level of neutrality. Consequently, a mediator must not seek to side with either party (“Ethical Consideration in Mediation,” 2009). A mediator must be aware of the existing conflicts of interest in order to be able to offer relevant and valid opinions that may help parties to come to an agreement. These conflicts of interest must be understood from both the actual and perceived perspectives so that they may not reoccur even after the mediation process is over.

A mediator must be competent in the field of mediation and must be in a position to meet the expectations of the concerned parties. In this context, a mediator would be required to communicate with conflicting parties to share experience besides meeting both the agency and federal requirements (“Ethical Consideration in Mediation,” 2009). Confidentiality must be upheld, and a mediator must be in a position to warn the parties that confidentiality may not be observed in certain circumstances, like in the enforcement of the deliberation in the federal court. The quality of the mediation process must be maintained by enhancing the participation of all parties, as well as a mediator, in carrying out the process diligently and fairly. In addition, a mediator must be honest in the solicitation as well as be available at all times. A mediator must not impose time constraints or make promises (“Ethical Consideration in Mediation,” 2009). Moreover, a mediator must disclose the compensation he/she is to receive from the process for this issue to be mutually agreed before the process commences. The settlement of the dispute should be left to the parties in question, and a mediator must not impose any solution.

Is Neutrality Completely Possible?

Complete neutrality in the process of mediation is possible. A mediator must not have any interest in the dispute; therefore, he/she must not seek to establish which party is wrong and which one is right (Green, 2016). The task of a mediator is to help parties understand each other, so that they can be in a position to have a commonality in the issue and, hence, devise an amicable solution that will be satisfactory to both of them. As a result, a mediator does not act as a judge but as an individual who helps both parties to raise their concerns about the issue. In the course of mediation, parties may discover certain aspects a mediator did not know, and it is out of these confessions that opposing sides can see the cause of conflict and decide to settle it on their own. The neutrality of a mediator can only be compromised if a mediator has an interest in a particular case, which may lead to unethical conduct on his/her part (Green, 2016). Another aspect that makes complete neutrality possible is the professionalism of a mediator. A qualified mediator gets into the mediation process acutely aware of what is expected of him/her and, therefore, strives to ensure that both parties feel comfortable with the process.

Conclusion

The history of mediation in the United States began in the 19th century. In the 1960s, it had been used in the prevention of urban unrest, while in the 1970s, various mediation programs, such as the Institute for Mediation and Conflict Resolution in Manhattan, were established. To provide quality meditation, mediators must uphold neutrality and be able to ensure that the parties concerned take part in the process voluntarily. The federal government and the relevant agencies played a crucial role in the promotion of mediation in society, especially through the creation of acts that legalize mediation and make its outcomes binding. A mediator is required to ensure he/she puts into consideration ethical issues that are necessary for the mediation process, such as confidentiality and the disclosing of the fee before the commencement of the process. Finally, the issue of neutrality is crucial, and a skilled mediator must maintain complete neutrality since the objective of mediation is to help conflicting parties reach an agreement.

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