Mediation Law: Meaning, History, Origins

Mediation law refers to the framework and methodology used in the practice of mediation as a confidential and voluntary way to resolve legal disputes outside of the court system used in traditional litigation. Mediation involves a neutral third party, the mediator, who assists disputing parties communicate, negotiate, and reach a mutually acceptable resolution to their dispute. The origin of mediation dates back to ancient Chinese, Greek and Roman civilizations when neutral third parties were used to arbitrate disputes. The history of mediation’s use for legal matters in the United States dates back to the early 20th century. William B. Wilson, the first Secretary of Labor in the United States, helped mediate labor disputes in the early 1900s. Samuel Gompers, a labor leader, in that same time period, advocated for the use of mediation to resolve labor conflicts. The United States Conciliation Service (USCS) was established during this same time period (1913).

What is Mediation in Law?

In terms of the law, mediation is an alternative to traditional litigation, that offers advantages in terms of cost-effectiveness, time-efficiency, confidentiality, creative problem solving, and preserving the relationship of the disputants. Mediation is used to settle various types of disputes including family law, commercial, workplace, community, environmental, and sovereign disputes.

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

The history of using mediation to resolve legal disputes is traced to ancient civilization such as the Greeks and the Romans. Mediation wasn’t codified into the laws of these civilizations, but it was adopted as an effective alternative to the legal system for certain types of disputes. In the 20th century, countries such as the United States, began including mediation as a part of law at the Federal and state level. The laws regarding mediation vary by jurisdiction since family law and civil law are governed by state laws, while interstate commerce, labor, and sovereign law is governed by Federal law.

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

The use of mediation in family law dates back to the 20th century, during which legal aid groups and different facets of the American justice system started using it with the primary purpose of aiding parties in achieving reconciliation rather than facilitate the process of divorce. Family law deals 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.

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?

Mediation for settling divorce cases was first used in the 1970s in California, Minnesota, and Wisconsin. These states developed formal mediation programs in their court systems as a result of rising divorce rates. Many states followed throughout the 1970s and early 1980s. The use of divorce mediation in Florida wasn’t adopted until the 1980s, but it has since become the primary method of resolving the legal aspects of divorce.

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, more states began mandating mediation. 

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 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 using mediation in law can be traced back to ancient civilizations in both Western and Eastern civilizations. Western civilizations, such as the Greeks, Romans employed informal methods of dispute resolution involving the intervention of a neutral third party. Ancient Chinese legal traditions employed mediation based on the Confucian principles that emphasized harmony and social order. Islamic civilizations of the middle east incorporated the concept of “Sulh” or reconciliation, with an emphasis on on equitable settlements for resolving disputes between parties.

What Are the Origins of Mediation in Western Law?

The origins of mediation in Western law can be traced back to ancient Greece where mediators or arbitrators assisted in resolving disputes. Roman law incorporated the use of arbitrators or “judices prvati” as means of alternative dispute resolution that was outside the formal legal system. These civilizations relied upon respected individuals or elders in the community to serve as mediators in disputes. Early Christian and canon law recognized mediation as an important method of reconciliation to help parties find common ground.

In medieval Europe, mediators known as “peacemakers” or “oath helpers” helped resolve disputes in rural and agriculture-based communities. Mediators were also used by guilds and merchant courts to resolve disputes within their communities. In medieval England, equity courts used mediation and conciliation as an alternative to the more rigid procedures of the common law courts, in order to achieve fair and just outcomes for disputants.

What Are the Origins of Mediation in Chinese Law?

Chinese mediation has been used to mediate disputes and accords since ancient times. Documents from 4,000 years ago describe the process of mediation. Legal culture and religious traditions have led Chinese to choose mediation and moral principles above legal tools for managing social relationships since ancient times.

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.

What Are the Origins of Mediation in Middle Eastern Law?

The origins of mediation in Middle Eastern law can be traced back to ancient Mesopotamia. The Code of Ur-Nammu, one of the earliest known legal codes, included provisions for resolving disputes through a rudimentary form of mediation. Later, the principles of Islamic law (Sharia) emphasized justice, fairness, and the resolution of disputes through peaceful means. “Sulh”, which refers to reconciliation or an amicable settlement, was widely used as an alternative to a formal legal process.

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.

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