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Mediation Law: Definition, History, and Origins of Legal Mediators

Mediation law is the legal framework and processes used in the practice of mediation as a way to resolve legal disputes outside of the court system used in traditional litigation. Mediation is voluntary and confidential. It involves a neutral third party, known as a mediator, who assists parties in conflict to communicate, negotiate, and reach a mutually acceptable resolution.

Mediation is derived from the Latin word mediare, which means “to divide in half; to be in the middle.” Mediation first appeared in Middle English towards the end of the 14th century. Mediation has been practiced since primordial times, with its origins in primordial Greek and Roman civilizations. Beginning with Justinian’s Digest in 530–530 CE, Roman law recognized mediation.

The origin of mediation as a method of alternative dispute resolution in the United States dates back to the 19th century. The history of mediation in the US began during early 20th-century labor and social turmoil. In 1898, Congress adopted New York and Massachusetts’ requests to form mediation committees to prevent strikes and turmoil that could hurt the economy. They established the Federal Mediation and Conciliation Service (FMCS) and the Board of Mediation and Conciliation for Railway Labor (BMCRL). Both organizations exist today.

What is the History of Using Mediation to Resolve Legal Disputes?

Historically, mediation was used to resolve legal disputes between people, in family law, in child custody disputes, between entities, in employment & workplace law, in labor law, in commercial law, and between countries.

What is the History of Using Mediation to Resolve Legal Disputes Between Groups of People?

In the United States, the history of the use of mediation to resolve legal disputes between groups of people (community mediation), can be traced to the social and political movements of the 1960s. In the social and political movements of the 1960s, community mediation was embraced as a means for individuals and communities to reclaim control of their lives from a government institution that was perceived as not only ineffective but also oppressive and unjust. This vision included empowering citizens to resolve their own disputes and constructing a genuinely alternative system that would keep many litigants out of court.

The Civil Rights Act of 1964 established the Community Relations Service as a government organization to deter violence and advance civil discourse, and many historians credit it with promoting community dispute resolution. 

The following are examples of community mediation services.

  • Community Relations Service (CRS) – established in 1964
  • Neighborhood Justice Centers (NJC’s)
  • The Manhattan Institute for Mediation and Conflict Resolution’s Dispute Center
  • San Francisco Community Boards Program
  • Rochester Community Dispute Services
  • Dorchester Urban Court Program

What is the History of Mediation Law in Family Law Disputes?

Family law is the legal field dealing with matters and issues related to family relationships, domestic partnerships, and individual rights within the context of family. Family law includes topics such as marriage, divorce, child custody (timesharing) and support, adoption, spousal support (alimony), property division, and domestic violence, and medical ethics.

The use of mediation in family law may be historically traced back to the 20th century, during which legal aid groups and different facets of the justice system started using it. Their primary purpose was to aid the involved parties in achieving reconciliation rather than facilitate the process of divorce.

Several states started conciliation services, starting with California. California established court-connected conciliation services in 1939 to help distressed spouses save their marriages. These courts’ reconciliation facilitators were among the first to use mediation. After reconciliation failed, divorce therapy and mediation for custody issues were used. More family court staff experimented with dispute resolution methods in the 1960s, leading to divorce and custody mediation.

When Was the First Use of Divorce Mediation?

As divorce rates rose, many states established formal family mediation programs in their courts. California, Minnesota, and Wisconsin established formal mechanisms in the early 1970s. Many states followed, with 1975 being the average year such programs began. Private-sector divorce mediation grew alongside court-based mediation. O.J. Coogler founded Atlanta’s first private family mediation center in 1974.

When Was Meditation First Used In Child Custody Disputes?

Mediation was first used in child custody disputes in 1980, when California mandated that parents attempt to resolve custody and visitation disputes through mediation. This marked the beginning of the use of mediation in child custody disputes. As mediation programs gained acceptance and began producing favorable outcomes, states began mandating mediation. 

What is the History of Using Mediation Law In Disputes Between Entities?

Mediation was used to resolve legal disputes between entities such as disputes between employers/employees, unions and companies, companies and companies. Mediation was first used in the United States to address legal disagreements between entities in insolvency cases in 1986, when the Bankruptcy Court for the Southern District of California established the Mediation Program.

The federal government has promoted mediation to resolve disagreements. After its 1995 expiration, the Administrative Dispute Resolution Act of 1996 revived mediation, which the federal government embraced in 1990. The act and agencies encouraged firms to employ workers in intra-agency dispute resolution. It also suggested using other agencies’ staff as neutral mediators or other appropriate authorities. The act also allowed commercial organizations and federal agencies to use government facilities and services. Harwell states that the federal government prioritizes mediation in cases like bankruptcy under 28 U.S.C. § 651.

The Bankruptcy Court for the Southern District of California established the Mediation Program in 1986, introducing mediation in the United States for insolvency cases. A few years later, mediation was utilized in the United States when Greyhound Lines Inc. filed for bankruptcy and established a pre-reorganization mediation plan for thousands of claimants who had filed personal injury and property damage claims against the company in relation to traffic accidents involving Greyhound vehicles. This case is an example of multi party dispute resolution because the debtor dealt with each creditor separately.

The success of ADR, the rising number of bankruptcy cases, and rising litigation expenses led to ADR regulation. The 1998 Alternative Dispute Resolution Act mandated ADR in “all civil actions, including adversary proceedings in bankruptcy,” paving the way for ADR in insolvency cases. In 2004, the Bankruptcy Court for the District of Delaware required parties to try mediation before certain adversarial actions. ADR was employed in 60% of US reorganization proceedings from 2000 to 2016.

What is the History of Using Mediation Law in Employment & Workplace Disputes?

Employment law is a legal field which encompasses all facets of the relationship between employer and employee. Aspects of employment law include workplace security, wages, pensions, and unemployment benefits. Examples of types of Employment law mediation are resolution of employment discrimination, workplace harassment, wage and overtime disputes, and termination disputes. 

History of mediation in employment and workplace law in the United States can be viewed in the historical context of the country’s lengthy adherence to the widely discredited concept of at-will termination. Unless they violate a law, employers could hire and fire without restriction. Fairness and due process were not fundamental standards for termination unless the termination breached a statute or protection, like the ability to unionize or report harmful working conditions.

Collective bargaining, statutes, employer unilateral acts, and judicial intervention have been used to achieve justice in the US.  The Railway Labor Act of 1927 provided for neutral chairs to resolve employee claim disputes, marking the first federal recognition of the benefits of alternate dispute resolution. The Federal Conciliation Service in the US Department of Labor was established in 1913 to help private sector unions and management reach consensus on collective bargaining agreements.

In 1935, Congress established the National Labor Relations Act, allowing majority-elected unions to discuss wage, hour, and working condition concerns with private sector employers. That right and the employers’ need to bargain in good faith led to a privatized dispute resolution system with final and binding arbitration of contract interpretation and application.

In 1947, the Federal Mediation and Conciliation Service took over the role of mediator, and unions were recognized as legal entities with the power to negotiate legally binding agreements. Soon after, many of these agreements included clauses that required final and binding arbitration of disputes about how contracts should be interpreted and used.

In 1960, the US Supreme Court ruled in the Steelworkers Trilogy that arbitration decisions were final and binding. Since then, government-provided mediation has become the norm for helping unions and management reach agreement on contract terms in interest disputes, while private arbitration has become the norm for resolving disputes over collective bargaining agreement rights. As unionization spread to the public sector, the private sector model was replicated, although private neutrals mediated interest issues and arbitrated rights disputes. Thus, the US government and society praised mediation as the best way to resolve job problems.

What is the History of Using Mediation in Labor Law Disputes?

Labor law is a legal field which seeks to address the “inequality of bargaining power” between employers and employees, particularly those “organized in the corporate or other forms of ownership association”. US labor law governs employees, labor unions, and businesses. 

The use of mediation in labor law to resolve disputes, also known as labor mediation, dates back to the early 20th century. As labor disputes and conflicts between employers and employees became more frequent and complex, mediation became an important tool in helping resolve disputes. Mediation’s use in labor disputes has evolved over time and has been influenced by all of the following items.

  • changing labor laws
  • societal attitudes toward labor relations
  • developments in alternative dispute resolution (ADR) methods.

The use of mediation in labor law helps resolve conflicts and disputes in a way that is fair, efficient, and conducive to productive labor relations. It helps employers and employees find common ground, maintain a positive working environment, and create mutually beneficial agreements..

What is the History of Using Mediation in Commercial Law Disputes?

Commercial law (corporate law) is a branch of civil law that governs the rights, relations, and conduct of individuals, businesses (corporations), and organizations engaged in commerce, trade, and industry. 

The use of mediation in business or corporate law dates back to the 20th century. Since the 1970s it has become more widely used to resolve a wide range of disputes.

The following are common types of commercial disputes for which mediation is used to provide a resolution that is beneficial to both parties.

  • Securities
  • Mergers and acquisitions
  • Intellectual property
  • Complex international contracts
  • Shareholder disputes
  • International law and treaty disputes

Legislators have pursued fully mandatory processes, opt-out processes, voluntary processes with incentives and penalties, as well as leaving extra-judicial mediation as an entirely voluntary alternative outside the court system, using a variety of strategies to refer civil disputes to mediation and/or conciliation as part of judicial proceedings. The use of incentives to reduce court costs and advance mediation was swiftly adopted by some US states and district courts. A complete state law allowing judges to refer civil cases to mediation was passed by Florida in 1988, fostering the development of what is now a very mature mediation market in that state.

What is the History of Using Mediation to Resolve Disputes Between Countries?

Mediation has played a significant role in resolving international conflicts involving countries such as the United Kingdom, Nigeria, and Peru. In 1998, Ecuador and Peru signed the Acta De Brasailia to settle their dispute. Brazil, Chile, Argentina, and the United States acted as third parties to help both sides in conflicts. The major goal of the agreement was to establish peace incentives or neighboring zones of natural protection on both sides of the border in the Cordillera del Condor region.

During the 1967–1970 Nigerian Civil War, great leaders such as Quakers Adam Curle, John Volkmar, and Walter Martin acted as mediators to help maintain the situation and reduce tensions between the disputing parties. They worked in a highly effective manner to reach an agreement that helped end the war.

What Are the Origins of the Use of Mediation in Law?

The origins of mediation in law can be found in Western law, Chinese law, Middle Eastern law.

What Are the Origins of Mediation in Western Law?

The origins of mediation in Western law can be traced back to ancient and medieval legal traditions and practices. 

The concept of mediation can be traced back to ancient Greece and Rome. These civilizations relied upon respected individuals or elders in the community to serve as mediators in disputes. 

In medieval Europe, mediators known as “peacemakers” or “oath helpers” helped resolve disputes in rural and agriculture-based communities. These mediators asked parties to swear oaths of settlement, ensuring that agreements were honored. Their role was not only legal but also had social and moral dimensions.

Pilot projects in mediation, in the form of victim-offender restitution programs with adolescents, began in Germany in 1984/1985, following the establishment of the working group Täter-OpferAusgleich by the German probation organization, Deutsche Bewährungshilfe e.V. The Bundesarbeitsgemeinschaft für Familienmediation (BAFM, a federal working group for mediation in family issues) was the first formal government-level body to work on mediation in January 1992.

Kurzynsky-Singer reports for Russia that mediation is a novel phenomenon without legal oversight. Economic controversies introduced the process to professional discussion. Mediation is not yet regulated legally. A draft mediation law draft was presented to the Duma (parliament) in 2007 and includes provisions about mediators and their usage in conflict, employment, and family problems. Kurzynsky-Singer reports that Russia has no legal mediation regulation and no procedure regulation. The Russian court must accept mediation results, although the process is not confidential or legal.  The Saint Petersburg Center of Conflict Resolution is one. This center conducted 520 mediations between 1994 and 2006, 364 of which involved interpersonal conflicts, 104 economic disputes, and 42 workplace issues.

Jessel-Holst discusses mediation in Hungary. That country passed a mediation statute in March 2003. The procedure is only for civil cases. The law provides little incentive to start mediation, although it was created to lower court caseloads. Mediation began in Hungary to resolve health care disputes.

Brussels prisons began mediation in 2001, and convicts or victims have been able to seek it since 2008. 792 requests, 614 mediations, and 167 face-to-face meetings happened between 2008 and 2012.

Italy tried five mediation options from 1990 to 2016, including voluntary and mandatory, before adopting its current ‘opt-out’ form in 2013. Mediation in Italy took a new turn with the enactment of Law No. 60/2009, which allowed the government to regulate mediation in civil and commercial disputes. To implement this rule, the Italian government introduced mandatory mediation before civil and commercial court cases.

What Are the Origins of Mediation in Chinese Law?

According to the ancient Chinese philosopher Confucius, problems should be handled through mutual understanding. He advised disputants to consult a mediator before going to court.

The philosopher Confucius felt that respect for others outweighed the law and its conflicts. Some experts believe China sponsored mediation under his rule (551–479 B.C.).

The philosopher urged ethical reconciliation to resolve disagreements. Confucius insisted that the disputants willingly reconcile. Back then, mediators met with both parties separately to chat. These conflict-resolution discussions were regular. To ensure impartiality and success, mediators would also consult with individuals who understood the disagreement. Confucius’ influence on Chinese culture has made mediation the preferred dispute resolution method for thousands of years.

Four phases can be identified in China’s history of mediation:

  • 1949 to the 1980s. After 1949, when the People’s Republic of China was established, the government promoted mediation as the primary dispute resolution method. This primarily entailed the use of local community-based mediation committees. During this period, the state was pervasive in all facets of society, and state-led mediation was widely accepted. Consequently, mediation played a crucial role.
  • 1980s to the 1990s. In 1978, when China began its reform and opening-up process, the state’s influence on society decreased, and its support for mediation also diminished. People no longer acknowledged the legitimacy of mediation and instead turned to litigation, resulting in a large number of disputes being resolved in court.
  • First decade of the 21st century: China initiated the “Big Mediation” movement, which emphasized the importance of mediation during litigation in order to alleviate the pressures of dispute resolution. Court-connected mediation took place at any stage of court proceedings, and judges frequently urged litigants to consider it.
  • 2010s: China is adopting a “diversified dispute resolution” method that coordinates mediation, arbitration, and litigation to address the rise in litigation and assist the Belt and Road Initiative (BRI). This method values out-of-court mediation, encompassing people’s, administrative, industry, commercial, and court-connected mediation.

Chinese mediation has been used to mediate disputes and accords since ancient times. Documents from 4,000 years ago describe it. A peculiar legal culture and religious traditions have led Chinese to choose mediation and moral principles above legal tools for managing social relationships since ancient times. Experts estimate that 30% of current Chinese disputes are decided extrajudicially.

What Are the Origins of Mediation in Middle Eastern Law?

Mediation may have originated in Sumer, according to experts. Sumer, a Middle Eastern Mesopotamian civilization, existed between 4500-1900 B.C. The mashkim evaluated each case before it went to court. The mashkim helped disputants handle their own issues. This is like a modern mediator. If the mashkim failed to resolve the dispute, the case went to court. Shari’a law also favors conflict mediation. The mediator should be impartial and uninvolved in the argument. Only providing ideas and solutions to disputants should resolve issues. The parties decide whether to accept the mediator’s advice.

In other Middle Eastern mediation cases, we evaluated Muhammad’s life. Many academics believe tribes fighting over the Ka’ba renovation picked Prophet Muhammad as a mediator early in his life.  The Prophet helped the tribes quell the tension by proposing a compromise.

What Are the Origins of Mediators and Mediation Services?

The origins of mediators and mediation services can be traced back to many different ancient civilizations where there was a need for individuals to act as intermediaries in the resolution of disputes. Mediators or their equivalents can be found in the following civilizations and organizations.

  • Ancient Greece
  • Indigenous societies
  • Religious groups and organizations
  • Medieval Islamic cultures
  • Chinese Dynasties
  • Modern Legal systems

The origins of mediators spans many civilizations and historical contexts.

Who Are Some Well Known Mediators?

Some historical people helped establish and promote mediation in the US.

  • Frank Sander: Sander was impressed by the difference between litigation and labor mediation, which resolved conflicts swiftly, cheaply, and successfully outside the courts in the 1970s, when courts were overburdened. He began lobbying for more alternatives to litigation when Chief Justice Warren Burger invited him to speak at the Pound Conference on public unhappiness with the court system.

Sander’s main idea was a “multi-door courthouse” where a court official would evaluate each new case during intake and choose the best conflict resolution method, i.e., litigation, mediation, arbitration, conciliation, etc.. The proposition caught Federal Judge Griffin Bell, subsequently President Carter’s Attorney General. Many cities and countries built multi-door courthouses under Bell’s direction.

He helped court systems in the U.S. and around the world offer mediation and other non-litigation dispute resolution methods. His imaginative attitude established ADR in the U.S. and enabled new and unique conflict settlement methods in and out of court.

Sander co-wrote the first dispute resolution law textbook, currently used in law schools. Inspires the American Bar Association’s Committee on Dispute Resolution (currently 20,000 lawyers).

  • Cesar Chavez: Chavez was a Mexican-American labor leader and civil rights activist. The struggle of American farm workers to improve their living and working conditions by organizing and negotiating contracts with their employers using mediation was Cesar Chavez’s life’s work.
  • William Ury: Ury has advised and mediated crises in the Middle East, Balkans, former Soviet Union, Indonesia, Yugoslavia, Chechnya, and Venezuela. Ury established and directed the Harvard Nuclear Negotiation Project. The US Arms Control and Disarmament Agency requested the Harvard Negotiation Project to write a report on superpower restraint using human communication to lower the risk of a war starting by accident, terrorism, mistake, runaway escalation, or misperception in 1982. In 1984, Ury and Richard Smoke interviewed U.S. and Soviet experts and government officials and published the government report. The report inspired Ury’s Beyond the Hotline. He also consulted for the White House Crisis Management Center, helping to establish Nuclear Risk Reduction Centers in Washington and Moscow, which were the subject of the first arms control agreement signed by Reagan and Gorbachev.

Ury and former President Jimmy Carter formed the International Negotiation Network to end civil strife. Ury coaches multinational executives and labor leaders to negotiate profitable deals with clients, suppliers, unions, and joint-venture partners. Ury founded e-Parliament with Nicholas Dunlop in 2001. The website brings together international political officials to discuss shared interests. The Climate Parliament, founded by the e-Parliament, brings together thousands of elected leaders from 50 nations to discuss renewable energy and climate issues informally.

  • Gary Friedman: Gary Friedman has been a mediator at Mediation Law Offices since 1976 and a teacher at the Center for Understanding in Conflict, which he co-founded, since 1980. He and his colleague Jack Himmelstein created the Understanding-Based Model of mediation, which is widely used in the US and Europe. As one of the first lawyer mediators and a leader in the mediation movement, he has used this model to resolve over 1,000 two-party and multiparty disputes in commercial and nonprofit settings, including intellectual property, real estate, corporate, personnel, partnership formations and dissolutions, and family law.

He has taught negotiation and mediation courses at Stanford University Law School, the New College of Law, Harvard Law School’s Program on Negotiation, and the World Intellectual Property Organization in Geneva, in addition to training lawyers, law professors, and judges through the Center for Understanding in Conflict. Friedman is an accomplished writer with three mediation books.

These and other historical personalities have helped establish, promote, and practice mediation in the US. Their ideas, approaches, and efforts have impacted dispute resolution and helped mediation become a respected and useful profession.