While this article is about the development of mediation as a field in the U.S. most of the points made apply equally to the Australia context. Welsh describes the idealised introduction of mediation in the 1970s as a “democracy-and-self-determination-enhancing, social justice ethos” which then became institutionalised into a process aimed solely at getting parties from dispute to settlement. She draws an analogy between mediation and cars – you can get a basic model to get you from Point A to Point B, but you can also add various enhancements or desirable features that respond to purchasers’ unique needs and aspirations (but which are not absolutely necessary for the car to meet its basic purpose of transportation).
She questions what the ‘basic purpose’ of mediation might be, and what are the minimum standards of safety required for its use (for the equivalent of the driver, passengers and members of the public).
She states “much of the mediation that is now occurring in the U.S. does not seem to focus on enabling the parties’ talk or collaboration. There is a focus on conflict closure, but only if that is understood as bringing a lawsuit or divisive conflict to an end and thus allowing the parties to move on. This is not necessarily the sort of closure that involves emotional or relational elements or might be described as “healing” in some way.”
Welsh argues that mediation’s most essential elements are:
- A third party—the mediator—who has no authority to impose an outcome;
- The exchange of information;
- Help provided to the parties to enable them to reach an agreement or settlement if they choose (and thus this is not a guaranteed outcome); and
- Does no harm.
Read the entire article (2025) Cardozo Journal of Conflict Resolution 26:271-298. https://static1.squarespace.com/static/60a5863870f56068b0f097cd/t/68121c5fc4a6427740b82fc0/1746017376046/05_CAC_26_2_Welsh.pdf