Abcde

christopher w moore

A third party is an individual or group of people that works between or among parties in dispute.
Third parties are generally somewhat

independent of disputants in that they are neither one of the primary

parties involved in a conflict, a secondary party who either sides with or supports one or more
disputants, nor a party who is likely to be significantly affected or receive direct benefits from the
resolution of disputants' differences.

Acceptability refers to disputing parties' willingness to welcome, accept, tolerate, or at a minimum,

not oppose the involvement of a third party who assists them in settling contested issues. It does not
mean that the parties eagerly welcome the mediator's involvement, nor is it an indication that they
will accept his or her recommendations regarding process and, in some mediations, his or her input
on substantive issues. It merely means that disputants are willing to listen to and seriously consider
his or her suggestions regarding process, and on occasion substantive considerations, to resolve
their differences.

Acceptability of a mediator by disputing parties may be grounded in a number of factors. Some

include individual or multiple parties' perceptions about the third party's impartiality and
independence, lack of connections, or, in some cases, desirable links to one or more disputants; and
whether or not they are perceived to be neutral, unbiased, fair, and objective toward any of the
issues in question. Other factors may include the intermediary's personality, personal “chemistry”
with disputants, reputation, past experience resolving similar issues, knowledge about issues in
question, affiliation with an institution or organization, status, age, gender, ethnicity,
recommendation from a trusted friend, and so forth.

In many circumstances, especially in Western models of mediation

practiced in many developed countries, the independence, or lack of

personal connections of a third party to one or more parties, which is commonly referred to as
impartiality, is a desirable quality and a major factor in his or her acceptability as an intermediary.
Impartiality involves “the ability of the mediator … to maintain an unbiased relationship with the
disputants” (Yarn, 1999, p. 216) and to remain somewhat equidistant from them. In many cultures
that adhere to the Western model of mediation, disputants often refuse to accept an intermediary
who has a preexisting relationship with one or more disputing parties, or is likely to have a
relationship in the future with one or more of them that could be personally beneficial to the third
party.
However, in some other forms of mediation or in different cultures, such as in some diplomatic
negotiations or in mediation conducted by customary authorities in developing countries, a
mediator with connections to one or more of the parties may be highly desirable. In these contexts,
one or more parties may want an intermediary with links to a counterpart. The assumption behind
securing the assistance of a “partial intermediary” with “connections” is that he or she may have
more ability to open talks, communicate views, and influence a counterpart perceived to be difficult
than the party requesting assistance may have him- or herself.

christopher w moore

mediation is a conflict resolution process in which a mutually acceptable third party, who has no
authority to make binding decisions for disputants, intervenes in a conflict or dispute to assist the
parties to improve their relationships, enhance communications, and use effective problem-solving
and negotiation procedures to reach voluntary and mutually acceptable understandings or
agreements on contested issues. The procedure is an extension of the negotiation process.
Mediation is commonly initiated when disputing parties on their own are not able to start productive
talks or have initiated discussions and reached an impasse.

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The United Nations (UN) Guidance for Effective Mediation describes mediation as a voluntary
process “whereby a third party assists two or more parties, with their consent, to prevent, manage
or resolve a conflict by helping them to develop mutually acceptable agreements”. The term peace
mediation comprises the entire structured process of supporting negotiations, from initial contact
between mediators and conflict parties to ceasefire negotiations and the implementation of peace
agreements. Mediation is thus an

instrument that can be used throughout the whole conflict cycle.

In both theory and practice, there are different views regarding the mediator’s role and style. The
following three approaches are relevant for peace mediation:

Facilitative mediation focuses on organising and facilitating communication between the parties in a
non-directive manner, eliciting the underlying interests and needs behind the stated demands and
positions. In order not to jeopardise multi-partiality, the mediator refrains from making substantial
recommendations or suggestions.

In formulative mediation, the mediator takes a more directive role. In addition to structuring the
process and gathering proposed solutions, the mediator offers different options, e.g. by formulating
option papers or drafting agreements. As in facilitative mediation the consent of the parties is seen
as essential.

The focus of power-based mediation lies in using the mediator’s leverage in order to reach an
agreement. A strong mediator deploys his power and uses strategic tactics. The conflict parties are
encouraged to agree through threats of punishment and promises of reward (carrot and stick
approach).

In practice, there is not always a clear-cut difference between these methods, and different
mediation actors can use these approaches or combinations thereof at different stages of the
mediation process. While the UN Guidance for Effective Mediation emphasises consent of the
conflict parties, impartiality of the mediator and inclusivity of the process as mediation
fundamentals, these elements are not always met in all the approaches

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It has been suggested that the term mediate is derived from the Latin word ‗mediare‘ which means
‗to be in the middle‘. However, as mediation continues to develop in this jurisdiction there ―... is

less consensus on what constitutes mediation. This may be due in part to the expansion of
mediation into new dispute arenas and to the increasing involvement of individuals from other
professions.‖

37 The Commission is aware that the term mediation can have different meanings depending upon
the context in which it is used and on whether the emphasis is put on the process or the outcome.

indeed, Menkel-Meadow describes 8 different conceptual approaches to mediation;38 Boulle

describes 4 models;39 Riskin has a ‗grid‘ of mediator orientations;40 and Alexander presents 6

contemporary practice models of mediation in her meta-model.41 Sourdin has suggested that
mediation is impossible to define, with various forms of processes used in different jurisdictions and
subject areas, with the primary difference relating to the role of the mediator

Despite this latter argument, the Commission considers that mediation should have a statutory
definition in Ireland. As the Commission suggested in its Consultation Paper, the development of
clearand consistent definitions of the more commonly used ADR terms would serve several
important functions.43 As noted by the Australian National Alternative Dispute Resolution Advisory
Council:
―The inconsistent use of both ADR terminology and principles potentially affects consumers,
referrers, evaluators, researchers, policy makers, courts and tribunals, all of whom need consistent
and accurate information on ADR. As a result, it is likely that many disputes that could effectively be
resolved through ADR are litigated in the courts and tribunals.

As previously noted, the Commission provisionally recommended in its Consultation Paper that
―when provision for mediation is made in legislative form, it should be defined as a facilitative,
consensual

and confidential process, in which parties to the dispute select a neutral and independent third party
to assist them in reaching a mutually acceptable negotiated agreement.‖45 The Commission now
turns to examine this definition in more detail.

While there are many definitions of mediation, most people agree that the purpose of the process is
to assist people in reaching a voluntary resolution of a dispute. Therefore, in its simplest form,

it can be said that mediation is negotiation facilitated by a third-party. Applying this basic definition
of mediation, it is evident that this process is used daily by people who may not even realise that
they are engaged in a mediation process. For example, a manager may informally mediate a dispute
between two members of staff or a parent may mediate a dispute between two siblings. Such
informal mediations are part of everyday life and settle a huge number of disputes. For the purposes
of this Report, the Commission views mediation as a structured formal process which is governed by
a set of key principles. This reflects the definition of mediation in the 2008 EU Directive on Mediation
which states that it is ―a structured process.

singapore convention

“Mediation” means a process, irrespective of the expression

used or the basis upon which the process is carried out, whereby

parties attempt to reach an amicable settlement of their dispute

with the assistance of a third person or persons (“the mediator”)

lacking the authority to impose a solution upon the parties to the

dispute

file:///M:/MARIO/AM/Tugas/S2/Tesis/Studi%20Pustaka/Mediasi%20Mediator/Basics%20of
%20Mediation.pdf

in both theory and practice, there are different views regarding the mediator’s role and style. The
following three approaches are relevant for peace mediation:
Facilitative mediation focuses on organising and facilitating communication between the parties in a
non-directive manner, eliciting the underlying interests and needs behind the stated demands and
positions. In order not to jeopardise multi-partiality5

, the mediator refrains from making substantial recommendations or suggestions.

In formulative mediation, the mediator takes a more directive role. In addition to structuring the
process and gathering proposed solutions, the mediator offers different options, e.g. by

formulating option papers or drafting agreements. As in facilitative mediation the consent of the
parties is seen as essential.

The focus of power-based mediation lies in using the mediator’s leverage in order to reach an
agreement. A strong mediator deploys his power and uses strategic tactics. The conflict parties are
encouraged to agree through threats of punishment and promises of reward (carrot and stick
approach)

moore

The forms of problem solving or negotiation assistance provided by mediators vary significantly
depending on the parties' characteristics, relationships, histories, dynamics, issues in dispute, needs
and interests, structural constraints, their cultures, and a range of other factors. Some common
forms of assistance include

Identifying, providing, or creating mutually acceptable places and

venues for negotiations

Bringing disputants together for talks (commonly called convening)

Providing hope, security, and safety needed to talk about difficult and often highly emotional issues

Helping disputants acknowledge issues and problems that happened in the past, but shift to a focus
on the future

Rebuilding damaged working relationships, facilitating development of new ones, and promoting
reconciliation
Managing and improving communications between disputants

Providing opportunities for appropriate expression of emotions

Working with parties to design effective procedures for negotiations

and strategies to address specific issues

Promoting information exchange and a deeper understanding of issues, needs, interests, and
concerns

Proposing effective problem-solving procedures

Suggesting ways to develop options for settlement, encouraging parties to suggest interest-based
options, and helping invent creative solutions

Helping parties evaluate options and compare them to their Best Alternative(s) to a Negotiated
Agreement (BATNAs)

Facilitating a process for adding, modifying, refining, or dropping

options to make agreement more acceptable

Identifying and building agreements on individual issues or packages of linked issues

Providing, when appropriate and agreed to by all parties, substantive

input or recommendations on potential solutions

Recognizing, restating, and confirming agreements on specific issues or broader sets of topics

Assuring consideration of potential agreements by the parties,

appropriate constituents, advisers, or superiors

Writing down agreements

Providing a process for formal approval and recording of agreements (signing, thumb-printing, or
photos)

Helping parties reach an end to the emotional part of a dispute so that they can move forward with
agreements

Providing, when needed, oversight and monitoring of implementation of an agreement, and helping
to promote voluntary compliance