Meet the New Dispute Resolution, Same as the Old Dispute Resolution
Saturday, April, 27, 2013
The English term “mediate” comes from the Latin term “mediatus” which means “to be in the middle.” In English, the term “mediate” not only means occupying a middle position but also acting through an intermediary. In mediation an intermediary or neutral occupying a middle position between two parties to a dispute helps those parties to resolve the dispute.
In the general sense of the term, mediation is likely as old as human conflict itself. For thousands of years, neutral intermediaries have brought individuals or groups together to discuss and resolve problems. Indeed, many of the world’s great religious traditions have used mediation to resolve conflict. An example of mediation in the Judeo-Christian tradition is Moses intersession with the Pharaoh on behalf of Israel. In the Talmudic law practice of p’sharah, a rabbi helps parties attempt to reach a voluntary settlement of their dispute.
But “mediation” has also come to have a more specialized meaning. Mediation is a form of alternative dispute resolution (sometimes called “ADR”). Alternative to what? Mediation is an alternative to litigating in court. Mediation is a way to resolve disputes outside of court.
A preference for mediation over litigation is not new. Confucius was skeptical of litigation, reported saying, “[i]n hearing causes . . . . [t]he great point is – to prevent litigation.” In the Islamic legal system, the process of suhl, which involves mediation and conciliation, facilitated by a kadi or prominent member of the community, is the preferred method of conflict resolution. For example, over 90% of Saudi Arabian civil disputes end in some form of sulh.
Mediation in not new. The time honored method of resolving disputes through mediation is enjoying a renaissance in the United States because court litigation is too costly, too time-consuming, and too contentious for many of the disputes that arise in our complex society.