Volume 03 Issue 11-2023
46
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
ISSUE
11
Pages:
46-52
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
ABSTRACT
This article analyzes the essence of mediation, its importance in international law, its role in conflict resolution, the
difference between international and national legislation on mediation, and the importance of mediation principles
for the legal resolution of disputes.
KEYWORDS
Mediation, third party, conflict resolution, mediation process, voluntary and involuntary participation, confidentiality.
INTRODUCTION
Definition and essence of mediation
Mediation refers to an approach to conflict
management in which a third party, which is not a
direct party to the dispute, helps disputants through
their negotiations and does so in a non-binding fashion.
The overall aim of mediation is to stop violence and
establish peaceful relations between conflicting
parties. However, there appears to be no consensus on
the definition of mediation, as mediation and mediator
roles have been understood differently by various
scholars and have different meanings in different
religious-cultural contexts.[1] Therefore, in Mediation,
a third party who is not a direct party to the dispute
resolves disputes through negotiation and does so in a
non-binding manner. The general goal of mediation is
to stop the violence and find a peaceful solution
between the disputing parties.
Mediation is the intervention into a dispute or
negotiation by an acceptable, impartial and neutral
third party who has no authoritative decision-making
power to assist disputing parties in voluntarily reaching
their own mutually acceptable settlement of the issues
in dispute. [2] It follows that in a Mediation Agreement,
the third party will not have any decision-making
authority and will provide a solution to the problem by
intervening in the dispute on an acceptable, impartial
and neutral basis.
Research Article
THE ROLE OF MEDIATION AS AN ALTERNATIVE METHOD OF CONFLICT
RESOLUTION, THE ESSENCE AND PRINCIPLES OF MEDIATION
Submission Date:
November 13, 2023,
Accepted Date:
November 18, 2023,
Published Date:
November 23, 2023
Crossref doi:
https://doi.org/10.37547/ijlc/Volume03Issue11-08
Akramov Alimkhon
Postgraduate Student Of Tashkent State University Of Law, Uzbekistan
Journal
Website:
https://theusajournals.
com/index.php/ijlc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
Volume 03 Issue 11-2023
47
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
ISSUE
11
Pages:
46-52
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
Mediation is a process intended to dissolve a conflict or
dispute with participation of a third party, namely a
mediator, accepted by all participants. The mediator is
not the one who makes the decision for the
participants of the conflict, but rather an individual
who acts as an intermediary with a purpose to improve
relations and communication.
Mediation is one of the alternative dispute resolution
methods, abbreviated to ADR. Mediation, as a
different form of conflict resolution, provides persons
with a possibility to talk to each other, and offers
knowledge by looking on the conflict from numerous
points of view. [3] The third party accepted in the
mediation process is proposed by the disputants on
the basis of their consent. He does not make a decision
in the mediation process as mentioned above, but
helps the two disputing parties to find a solution to the
problem without the intervention of the court. In this
case, the parties listen to each other and negotiate to
find alternative solutions to the dispute.
The United States District Court for the Eastern District
of New York, for example, defines mediation as a
process in which parties and counsel agree to meet
with a neutral mediator trained to assist them in
settling
disputes.
The
mediator
improves
communication across party lines, helps parties
articulate their interests and understand those of the
other party, probes the strengths and weaknesses of
each party’s legal positions, and identifies areas of
agreement and helps generate options for a mutually
agreeable resolution to the dispute. In all cases,
mediation provides an opportunity to explore a wide
range of potential solutions and to address interests
that may be outside the scope of the stated
controversy or which could not be addressed by
judicial action. A hallmark of mediation is its capacity to
expand traditional settlement discussions and broaden
resolution options, often by exploring litigant needs
and interests that may be formally independent of the
legal issues in controversy. [4]
Based on the above definition, it can be provided that
the Mediation process helps to improve the
communication between the parties, the parties to
express their interests and understand the interests of
the other party, to identify the areas of agreement and
to develop options for mutually agreed resolution of
the dispute.
A distinctive feature of mediation is its ability to
expand upon traditional settlement discussions and to
expand resolution options by exploring claimant claims
and interests that may often be formally independent
of the legal issues in dispute.
Mediation is a voluntary endeavour in which the
consent of the parties is critical for a viable process and
a durable outcome. The role of the mediator is
influenced by the nature of the relationship with the
parties: mediators usually have significant room to
make procedural proposals and to manage the
process, whereas the scope for substantive proposals
varies and can change over time.
Rather than being a series of ad hoc diplomatic
engagements, mediation is a flexible but structured
undertaking. It starts from the moment the mediator
engages with the conflict parties and other
stakeholders to prepare for a process
–
and can include
informal “talks –
abouttalks” –
and may extend beyond
the signing of agreements, even though the function
of facilitating the implementation of an agreement
may best be performed by others.
An effective mediation process responds to the
specificity of the conflict. It takes into account the
causes and dynamics of the conflict, the positions,
interests and coherence of the parties, the needs of
Volume 03 Issue 11-2023
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International Journal Of Law And Criminology
(ISSN
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SJIF
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(2023:
6.
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OCLC
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1121105677
Publisher:
Oscar Publishing Services
Servi
the broader society, as well as the regional and
international environments. [5]
Importance of mediation in the international law
Mediation plays an important role in conflict and
conflict resolution in a variety of contexts, from
interpersonal relationships to international diplomacy.
Mediation is a form of conflict resolution in
international politics which stresses the vital role of a
third party in the process of creating peace and
facilitating agreement between erstwhile disputing
actors. Mediation plays a prominent role in
contemporary international affairs. Whenever some
historic or epoch-making international events make
the news headlines a mediator has often played a role
in the shaping of events. The prominence of this type
of international politics, where a few individuals make
decisions which can affect the lives of millions, entails
the need for serious critical analysis and debate within
International Relations theory. [6]
The importance of mediation is not only in
interpersonal relations, but also in diplomacy between
countries, where countries resolve various conflicts
and disputes through the intervention of a third party.
Third-party dispute resolution also helps to maintain
their reputation in the international arena.
In addition to that, Mediation is a voluntary process in
which the parties take part in voluntarily. This allows
them to actively participate with each other in finding
valuable solutions rather than making decisions. This
collaborative approach helps the parties in the
resolution process to listen to each other to solve the
problem based on the situation. Besides, mediation
does not focus only on legal outcomes, but also on
saving and restoring relationships. It provides a safe
and neutral space for parties to express their concerns,
interests and perspectives. By facilitating constructive
communication, mediation can help restore trust and
foster long-term partnerships.
Moses, in her own book named “The Principle and
Practice of Internat
ional Commercial Arbitration”,
provided that Mediation differs from arbitration
because it is nonbinding. An arbitral institution is likely
to have rules for mediation as well as rules for
arbitration. A mediator will try to make sure each party
understand
s the other’s point of view, will meet with
each party privately and listen to their respective
viewpoints, stress common interests, and try to help
them reach a settlement. [7]
Compared to traditional litigation or arbitration,
mediation typically resolves disputes in a faster and
more cost-effective manner. This avoids lengthy
litigation, reduces litigation costs, and offers flexibility
in planning and process design. Mediation can be
particularly useful for businesses, individuals, large
business firms and commercial institutions looking to
save time and resources.
Mediation is by far the most common form of peaceful
third-party intervention in international conflicts. It is
predicated on the need to supplement conflict
management, not to supplant the par
ties’ own efforts.
Although mediation has become an integral part of
many systems (e.g. labor-management, family
disputes), it is a form of conflict management that is
particularly
well-suited
to
the
international
environment with its numerous and diverse political
actors all interacting to achieve scarce resources or
influence, and where each guards its interests and
autonomy jealously and accepts any outside
interference in their affairs only if it is strictly necessary
and explicitly circumscribed. Mediation is both
voluntary and peaceful, and this makes it an attractive
option for many states. [8]
Volume 03 Issue 11-2023
49
International Journal Of Law And Criminology
(ISSN
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2771-2214)
VOLUME
03
ISSUE
11
Pages:
46-52
SJIF
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FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
Mediation is confidential. There is usually a provision in
the chosen rules that no disclosure made during the
mediation can be used at the next level of the dispute,
whether arbitration or litigation. If the rules do not
provide for this, then there should be an agreement in
writing to the effect that anything disclosed in the
mediation process cannot be used at the next level,
except to the extent it comes in through documents
not created for the mediation. [7] It follows that this
confidentiality allows the parties to freely express their
opinions, concerns and settlement proposals without
fear of public disclosure. Maintaining confidentiality
helps protect sensitive information, preserve the
reputation of the parties, and promote open
communication in mediation sessions.
We view mediation as a form of joint decision-making
in conflict in which an outsider controls some aspects
of the process, or indeed the outcome, but ultimate
decision-making power remains with the disputants.
Mediation is best seen as an extension of bilateral
conflict management. It is a rational, political, though
at times risky, process with anticipated costs (e.g. time
spent mediating) and benefits (e.g. achieving a
reputation as a successful mediator). It operates within
a system of exchange and social influence whose
parameters are the actors, their communication,
expectations, experience, resources, interests and the
situation within which they all find themselves.
Mediation is a reciprocal process; it influences, and is in
turn influenced by and responsive to, the context,
parties, issues, history and environment of a conflict.
All these aspects shape and influence the selection,
process and outcome of mediation. [8]
Mediation can occur at any time in the dispute. If
parties get to a point in litigation, or in arbitration,
where they want to settle, and need some help, they
can get a mediator. Mediators are also sometimes used
in the negotiation stage of a contract, when
negotiations have reached an impasse, but both
parties actually want the deal to go through. Because
mediators try to understand and reconcile the interests
of the parties, mediation is sometimes referred to as an
interest-based procedure, while arbitration is referred
to as a rights-based procedure. [7]
Mediation provides an opportunity for the parties to
actively participate in the resolution of their disputes.
They have the opportunity to express their needs and
interests directly to each other. This sense of agency
and self-determination leads to greater satisfaction
with the outcome and adherence to the final
agreement.
Principles of mediation in the international law
system
There are several important principles of mediation in
the international framework, which play an important
role in the peaceful resolution of disputes. These
principles consist of confidentiality, voluntariness,
cooperation and equal rights of the parties,
independence and impartiality of the mediator, and
help the disputing parties and the mediator to see the
dispute fairly.
The draft law “On Mediation” contains the principles
of voluntariness, equality of arms, neutrality and
impartiality, confidentiality. Experts in the field of
mediation suggest the possibility of continuing the
discussion on the qualitative and quantitative
composition of those principles that are not reflected
in Art. 3 of the draft law “On Mediation” and are
derived from the general content of the legislation
(dispositiveness, mutual respect of the parties,
neutrality of the mediator, transparency of the
procedure and others). [9]
International documents and national legislation
provide
information
about
the
principle
of
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(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
confidentiality of mediation, and the national
legislation of Uzbekistan provides: mediation
participants do not have the right to disclose the
information that became known to them during the
mediation process without the written consent of the
mediating party that provided them, its legal successor
or representative. [10]
Mediation is confidential. There is usually a provision in
the chosen rules that no disclosure made during the
mediation can be used at the next level of the dispute,
whether arbitration or litigation. If the rules do not
provide for this, then there should be an agreement in
writing to the effect that anything disclosed in the
mediation process cannot be used at the next level,
except to the extent it comes in through documents
not created for the mediation. [7]
Confidentiality is a critical element of successful
mediation. In order for the mediator, the attorneys and
the clients to understand the central issues, the
motivations, the pressure points and the risks of
litigation, the participants must be assured the
discussions cannot and will not be disclosed to others
so they can talk openly... If discussions with the
mediator are not confidential and privileged, the
mediation process, the mediator‘s role and the
potential for resolution are significantly diminished.
[11]
The draft law “On Mediation” contains the principles
of voluntariness, equality of arms, neutrality and
impartiality, confidentiality. Experts in the field of
mediation suggest the possibility of continuing the
discussion on the qualitative and quantitative
composition of those principles that are not reflected
in Art. 3 of the draft law “On Mediation” and are
derived from the general content of the legislation
(dispositiveness, mutual respect of the parties,
neutrality of the mediator, transparency of the
procedure and others). [9] Additionally, any
involuntary action is prohibited during the mediation
process, and the parties and the third party participate
voluntarily in the process. Mediation parties have the
right to withdraw from mediation at any stage. The
parties are free to choose the issues to discuss a
mutually acceptable agreement. It is prohibited to
force conciliation during the implementation of the
mediation procedure. [10]
It is a fact that the mediator should be liked and
respected, as the conflict participants feel affection to
such a person. A good mediator consists of both
personality and knowledge. However, a mediator is an
outside person who resolves or attempts to resolve
conflicts, and therefore must adhere to the mediator's
work ethics, rules and principles. [12] In the mediation
process, the independence of the mediator who
resolves the dispute plays an important role, and no
one is allowed to interfere in his activities.
The mediator must be impartial, implement the
mediation procedure in the interests of the parties and
ensure their equal participation in the mediation, and
create the necessary conditions for the parties to fulfill
their obligations and exercise their rights. If there are
circumstances
that
hinder
the
mediator's
independence and impartiality, he should refrain from
carrying out the mediation procedure. [10]
Problems and solutions in the Mediation Process
There are some problems in mediation process, they
include lack of willingness to participate, power
imbalance, lack of trust, communication and mediator
neutrality. As regards mediator neutrality in
mediation, mediators should remain neutral and
impartial during the process.
Any perceived bias or lack of neutrality can erode
parties' confidence and trust in the mediator and result
Volume 03 Issue 11-2023
51
International Journal Of Law And Criminology
(ISSN
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2771-2214)
VOLUME
03
ISSUE
11
Pages:
46-52
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
in an unsuccessful mediation. It is crucial for a mediator
to continuously uphold their neutrality and manage
their own biases.
The dilemma of even-handedness (that it could lead to
unequal outcomes) focuses attention on the fact and
dynamic of the parties’ relationship with each other.
The problem of neutrality in this context is identified as
the problem of redressing imbalances of power as
between the parties. Redressing power imbalances
focuses attention on the activity of the mediator in
relation to both parties (although the objective would
be to influence the relationship between them). [13]
A power imbalance between the parties can lead to
difficulties in mediation. If one party has significantly
more power or influence, this can affect the dynamics
of mediation and the ability to reach a fair and balanced
agreement. The mediator must address and manage
these imbalances to ensure equal participation and a
level playing field.
If there is a history of mistrust, miscommunication, or
conflict escalation, it can be challenging to establish
open and honest dialogue. The mediator plays a crucial
role in facilitating trusting relationships and fostering
effective communication.
Effective mediation requires a supportive external
environment; most conflicts have a strong regional and
international dimension. The actions of other States
can help to reinforce a mediated solution or detract
from it.
A mediator needs to withstand external pressures and
avoid unrealistic deadlines while also developing the
support of partners for the mediation effort. In some
circumstances the mediator’s ability to harness
incentives or disincentives offered by other actors can
be helpful to encourage the parties’ commi
tment to a
peace process. [14]
Mediation requires the voluntary participation of all
participants. If one or more parties are not genuinely
committed to the process or have low motivation to
work towards a resolution, this can hinder the progress
and effectiveness of the mediation.
REFERENCES
1.
Bercovitch, J., & Kadayifci-Orellana, S. A.
(2009). Religion and mediation: The role of
faith-based actors in international conflict
resolution. International Negotiation, 14(1),
175-204;
2.
C. Moore. The Mediation Process: Practical
Strategies for resolving Conflict (London,
1996), p. 14;
3.
Ott, M. C. (1972). Mediation as a method of
conflict resolution: Two cases. International
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4.
https://www.nyed.uscourts.gov/mediation;
5.
https://peacemaker.un.org/sites/peacemaker.
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PA2012%28english%29_0.pdf;
6.
Jones, D. L. (2000). Mediation, conflict
resolution and critical theory. Review of
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7.
Moses, M. L. (2017). The principles and practice
of international commercial arbitration.
Cambridge University Press;
8.
Bercovitch, J., & Regan, P. M. (2007).
Mediation. Peacemaking in international
conflict, 163-194;
9.
Bortnyk, N., Tylchyk, O., Lukyanova, G.,
Skochylias-
Pavliv, O., & Remenіak, O. (2021).
Principles of mediation as an alternative way to
protect human and citizen rights. Cuestiones
Políticas,
39(70),
https://produccioncientificaluz.org/index.php/
cuestiones/article/view/36847/39813;
Volume 03 Issue 11-2023
52
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
ISSUE
11
Pages:
46-52
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
10.
Law of the Republic of Uzbekistan on
mediation, https://lex.uz/docs/-3805227;
11.
Hobbs,
―Mediation
Confidentiality
&
Enforceability: Deal or No Deal?
‖
(2006) Online
article available at www.mediate.com. See also
Johnson
―
Confidentiality in Mediation
‖
(2002)
30 Fla St U L Rev 489; and Foster & Prentice
―
The Promise of Confidentiality in Mediation:
Practitioners‘ Perceptions
‖
(2009) J Disp Resol
163;
12.
Mediation as a conflict resolution process
Małgorzata Martynoga*, Marzena Sielenzak
Faculty of Economics, Management and
Tourism in Jelenia Gora, Wroclaw University of
Economics, 112/120 Komandorska Str., 53-345
Wroclaw, Poland;
13.
Douglas, S. (2008). Neutrality in mediation: A
study of mediator perceptions. Law and Justice
Journal, 8(1), 139-157;
14.
Secretary-General, U. N. (2012). United Nations
guidance for effective mediation. Annex I of
the
Report
of
the
Secretary-General:
Strengthening the role of mediation in the
peaceful settlement of disputes, conflict
prevention and resolution, UN Doc A/66/811,
25;
