Common tools, diverse processes : the case of mediation

Abstract

Mediation training provides the essential skills, techniques and theories which the mediator will eventually adapt into effective tools to deal with arising scenarios. There seems to be a lacuna in literature vis-a-vis such adaptations and this study aims to address it by focusing on three tools, these being 'Information Gathering', 'Negotiation' and 'Caucusing'. It compares their use within the family and commercial mediation contexts, by identifying them and any influencing factors, while assessing whether these are related to the mediation context itself. A qualitative approach was adopted, based on secondary data sources and 'elite' interviewing of mediators. Five of the interviewees practise within the family context, whereas the other two practise within the commercial field. Unfortunately, the recruitment of another three commercial mediators proved difficult for the researcher. These were the only two who had the necessary criteria to be part of the research and who accepted to partcipate. Other potential participants were in involved in other ways related to this research, and thus could not be asked to take part. Interviews were semi-structured, and referred to two case-studies, set within the two contexts. This allowed the interviewees to relate to the situation, and hence reduce incongruity. Thematic analysis was used to evaluate this rich information, and subsequently explore the main research questions. Findings indicate that tool adaptations are attributed to the contexts' diverse mediation goals and the presence of children, which is reflected in the mediator's approach in dealing with parties' relationships. Whereas family mediators strive to improve the spouses' relationship, to enable them to overcome present and future difficulties, commercial mediators help resolve the dispute, which will consequently encourage them to improve mutual ties. Moreover, the study observes that whereas family mediators draw a lot from their life experience, commercial mediators prefer cases which fall within their professional specialisation, where they can help generate suitable options. Recommendations include promoting awareness of such adaptations, so as to render them more acceptable to recipients. It also promotes improvement of local family mediation practices by proposing the mandatory disclosure of financial matters, encouraging Courts to consider mediated partial agreements, and ensuring adequate amenities to facilitate caucusing. The main trust of this research was hence to illustrate, through experience and practical examples, how the same mediation tools can be adapted to different contexts, giving the same results - a harmonious and long-lasting relationship amongst parties.