One of the most fascinating things about mediation is that it can give a chance to parties to be responsible; they own the conflict and are ready to resolve it with external assistance. Either a country has mediation in its traditions or it chooses to develop it as an alternative to the existing legal system. Being a voluntary process, mediation is empowering people to resolve disputes.
All of the above is what I used to believe for many years. Not anymore.
Although mediation is broadly understood to be an alternative dispute resolution method, in some countries, recent developments have changed this and it has become very much a part of the legal system. At first, (voluntary) mediation was applauded as fast and cheap. But the percentage of actually mediated cases was quite low in comparison to the total disputes in the courts. After immense public advertisement and investments, there were only a few good examples. In many countries, mediation as a dispute resolution method became a disappointment rather than a success story.
This lead to the next step: mandatory mediation. Mediators like myself, who believe in the voluntary nature of mediation and its social benefits, have doubts. Others are very happy about mandatory mediation as it increases the market of mediated cases and grows the income of mediators.
On the other hand, independent of how a case is mediated, mandatory means mediation becomes a court procedure. It isn’t any longer an alternative which helps people own their conflict and volunteer to negotiate for a resolution. By law, they have to try mediation first! Unfortunately forcing disputants to try mediation first, is not helping to create the trust that is essential to make it succeed.
People like to be able to choose
In my opinion, this is the very reason why people need to develop negotiation skills. Firstly they can make better deals, sign good agreements, and have sustainable partnerships. Secondly, when there is a dispute, they can negotiate between themselves first. If necessary, they may prefer an assisted negotiation through mediation.
From this perspective, negotiation theory offers a wonderful tool which people can use. They can negotiate voluntarily for a common relationship they themselves define and build. They can use certain principles to deal with disputes and they can find creative solutions to reach their objectives. The ability to negotiate brings people the ability to make choices. Freedom walks hand in hand with responsibility. People who are not taking responsibility as negotiators will ultimately depend on a third party’s decision. Sometimes, even if they do take responsibility, various reasons such as highly charged emotions or a lack of negotiation skills, people fail to succeed. The upside is, we all can learn to master negotiation; it requires training, honest self-evaluation and building up experience.
Negotiation Offers People Options
Negotiation cannot be part of a court system and will not be mandatory. Instead, negotiation offers options to pursue better deals. Negotiation theory has a set of ethical standards but it does not have a contradicting code of conduct like voluntary but mandatory mediation. Anyone can be a negotiator, either for themselves or for others. Mediation, on the other hand, is regulated and limited to certain professionals. The more negotiating ability we have, the more harmonious the communities we will create. This is not only empowering people but empowering societies at large.