When is 'Mediation' Actually Mediation?

Posted on: February 5th, 2024

Hardly a week goes by lately without us hearing in the mainstream news about the use of ‘mediation’ somewhere in the world: from Qatar mediating in relation to the war in Gaza, China offering to mediate between Pakistan and Iran, to the European Union Intellectual Property Office (EUIPO) recently launching a Mediation Centre in Alicante for IP disputes, right up to the UK government last week deciding after all not to mandate mediation for separating couples.

But why the quotation marks around ‘Mediation’? Largely because the word is used quite loosely to refer to a wide range of non-court-based dispute resolution methods, and not all of those would meet the definition of mediation that we here at EU Mediation would use.

So, in this short article I just want to clear up some common misunderstandings about mediation, in case you come across something referred to as ‘mediation’ and you want to decide if that’s what it actually is.

Diplomats representing their countries, IP lawyers in dispute, people going through divorce: all of these might sometimes need assistance from a third-party to help with their negotiations. They might choose to engage a mediator (or two). But what does this mean

Well, primarily, a mediator is impartial. So, the mediator invests themselves equally in both sides’ interests and supports them equally in building a dialogue: the aim is to help the two sides reach a mutually agreeable settlement whereby they both walk away with what they fundamentally need. 

If the mediator takes a view on the dispute, judging who is right or wrong, or who is more to blame, then they are not being impartial. If they advise parties, give opinions, or propose options for settlement, then they have likewise lost their impartiality and should rather be considered to be arbitrating or conciliating.

Next, the mediator works confidentially. There are often elements to a dispute that one or both parties wish to keep private, fearing adverse exposure, and frequently parties feel awkward that their own words and actions have contributed to the current deadlock or stand-off. So, all mediation discussions are confidential.

If minutes are made, or if discussions are recorded, or if others are present in mediation who may disclose what they hear outside the mediation room, then clearly we don’t have the essential building block of confidentiality. Also, if the practitioner, without consent, passes information between the parties, then we have again moved away from our definition of mediation.

And the final ingredient in the mediation mix is that parties have to come to the table voluntarily.  People will only negotiate in good faith and with the requisite amount of effort and commitment if they themselves decide they want to be present. Nobody can be forced or coerced to attend.

People who are made to attend mediation will not participate fully, nor engage whole-heartedly with the often-difficult discussions that have to take place if mediation is to work. We should only call it mediation if people are attending because they are genuinely choosing to be there to seek a settlement.

As mediation specialists, we raise a collective eyebrow when we hear in the news about ‘mediation’ being used in relation to a high-profile dispute. Quite often, what is actually happening is some kind of arbitration, conciliation, or other quasi-legal process, and not mediation at all.

Our own practice, however, involves using purely mediation: resolving workplace, interpersonal disputes within families, and business disputes in organisations throughout Europe. Whether a fall-out between colleagues, issues between companies or business partners, or interpersonal disputes of any variety, we get great outcomes by sticking to the three principles of impartiality, confidentiality, and voluntariness.

Ours is mediation, not ‘mediation’!   


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