The Theory and Philosophy of Mediation

Introduction In this chapter we take a more theoretical view of mediation. We begin with a philosophical consideration of the key features of mediation practice. We then examine the five philosophies of mediation – confidentiality, voluntariness, empowerment, neutrality, and a unique solution – with a critical view as to what the terms mean and how central to mediation practice they are. Following that we look at the various models of mediation, and focus our attention upon the facilitative, evaluative and transformational models. We conclude the chapter with an examination of when mediation is effective and appropriate and what some of its weaknesses are. The form and function of mediation It is one thing to state that a mediation is comprised of certain basic practical components (see Chapter 2). It is another to refer to mediation in a generic way, given the variety of mediation situations and the flexibility of the process (see uses in Chapter 2). But what of attempting to distill, from the processes and variety of mediation, some theoretically-oriented perspective? In an article entitled ‘Mediation – Its Forms and Functions’, Professor Lon Fuller, noted Harvard Law Professor and self-titled ‘student of jurisprudence’, provided an analysis of mediation, ‘attempting to go beyond the generalities’ of mere description by comparing and contrasting mediation with the key components of a collective bargaining dispute (Fuller 1970–1, pp 305–39). In so doing, Fuller commented on the proper function of the mediator, and the role of mediation within broader society.