Mediation: Organizing Communication Between Subjects in Conflict

Introduction

Mediation is an organized form of communication in which an independent intermediary assists conflicting parties in finding an acceptable way to resolve their disagreements themselves, without appropriating the authority to decide for them.

In legal practice, mediation is formalized as a dispute-resolution procedure. However, its communicative structure is an independent subject of investigation: a third subject enters the conversation without becoming either of the disputing parties or replacing their decisions with their own.

It is important to distinguish organizing negotiations, establishing facts, acknowledging accountability, reaching agreement, and imposing compromise. The presence of a mediator does not itself resolve a conflict, and participants’ equal right to express their positions does not make those positions equally well-founded.

1. What Exactly Is Called Mediation

In everyday usage, mediation means assistance by a third person in settling a conflict. In legal usage, it refers to a particular procedure for which principles, rights, duties, and conditions of application have been established.

Under Russian law, Federal Law No. 193-FZ of July 27, 2010 defines mediation as an alternative procedure for resolving disputes with the participation of an intermediary, an independent person engaged by the parties to assist them in developing a decision on the substance of the dispute.

We must distinguish:

Conflict: a collision of interests, demands, goals, interpretations, evaluations, or actions.
Dispute: an expressed disagreement in which parties present particular claims, assertions, or objections to one another.
Negotiation: communication in which parties attempt to coordinate decisions and terms of subsequent action.
Intermediary assistance: participation of a third subject who facilitates communication.
Mediation: specially organized intermediary assistance in which decisions on the substance remain with the parties.
Mediated settlement agreement: an agreement reached by the parties on all or part of a dispute and recorded in an appropriate form.

Not every involvement of a third person in a dispute is mediation. If that person resolves the dispute by a binding decision, we are dealing with a different structure.

2. Subject Structure: Two Participants and an Intermediary

An ordinary dispute can be represented as a relationship between subjects A and B, who define what is happening differently and make demands of each other.

With the introduction of mediator M, additional communicative relationships emerge:

A addresses M and, through the process M organizes, can address B.
B addresses M and, through the process M organizes, can address A.
M helps the parties clarify messages, questions, grounds for demands, and possible settlements.
A and B retain the right to accept or reject the proposed terms.

The mediator influences the organization of communication but has no general authority to prescribe the content of the parties’ decision.

This does not mean that the intermediary is passive. The order of statements, questions asked, selection of subjects for discussion, distinguishing an assertion from an evaluation, and inviting parties to clarify wording are real actions that affect the course of negotiations.

That is why the thesis “the mediator has no influence at all on the outcome” is false. The mediator affects the conditions of discussion and can thereby influence the result; the boundary of the role lies in having no authority to impose the final decision.

As a general rule, in Russian mediation a mediator may not propose settlement options unless the parties agree otherwise (Article 11, Part 5, of Law No. 193-FZ). This is an important distinction between assisting with organizing discussion and substantively proposing a settlement option.

3. Mediation as a Distinct Way of Organizing Communication

Conflict does not necessarily arise from insufficient information. Parties may possess the same facts but assess their significance differently, present incompatible demands, refuse to acknowledge accountability, or seek different results.

Mediation must not begin with the assumption that every disagreement is reducible to misunderstanding.

Several operations can be distinguished within mediation. They describe possible mechanics, not a mandatory universal sequence.

3.1. Organizing the Space of Conversation

The parties agree on the intermediary’s participation, the subject matter of discussion, rules of interaction, and permissible means of ending the process.

An important change occurs: the exchange of remarks is no longer left entirely to the spontaneous collision of demands. An agreed procedure emerges.

3.2. Identifying the Positions Presented

Each participant has an opportunity to express exactly what they assert, dispute, and demand.

A position is not necessarily a hidden need that the mediator must guess. It may contain a factual thesis, moral assessment, legal demand, refusal, condition, or principle the subject is unwilling to change.

An explicit demand cannot simply be declared a “surface” behind which a different, supposedly more authentic interest must necessarily be hiding.

3.3. Separating the Components of an Utterance

In a dispute, an utterance often combines distinct elements:

A report of an event.
A causal explanation of the event.
An evaluation of an action.
Attribution of intention.
Determination of accountability.
A demand addressed to the other party.
A proposal of settlement terms.

Separating these elements does not automatically resolve the dispute. It prevents replacing one thesis with another and makes it possible to identify the precise object of disagreement.

The parties may name desired outcomes, restrictions, non-negotiable demands, and conditions under which an agreement would be unacceptable to them.

Some mediation practices distinguish interests from initial positions. But this operation does not entitle the mediator to claim to know better than the subject what the subject “really” wants.

3.5. Investigating Possible Solutions

Proposals may come from the parties themselves; the limits of a mediator’s involvement are determined by the applicable procedure and the parties’ agreement.

A proposed option must be distinguished from an imposed one. A participant can reject a solution without an obligation to agree merely to bring negotiations to an end.

3.6. Recording Agreement or Its Absence

The outcome may be an agreement, a partial settlement, clarification of the conditions for subsequent negotiations, or termination without agreement.

Failure to reach agreement does not prove that communication was absent: negotiations may have clarified disagreements, identified boundaries of acceptability, and separated demands that had previously been conflated.

4. Principles of Mediation

Voluntariness

The parties independently decide whether to participate and conclude an agreement. Participating in negotiations does not amount to advance consent to every proposed term.

Formal consent must be distinguished from consent obtained under pressure, threats, dependency, or lack of information. Uttering “I agree” does not exhaust the investigation of voluntariness.

Independence of the Intermediary

A mediator must not be in a position where participation is determined by one party’s interests or by a personal stake in the outcome incompatible with the procedure’s requirements.

Impartiality

A mediator does not turn the organization of conversation into support for one participant against another. But impartiality toward the parties to a procedure does not require recognizing their facts, evidence, legal grounds, or demands as equally valid.

Equality of the Parties

Each participant has the rights provided by the procedure to participate, express a position, and assess the acceptability of an agreement. Equality within the procedure does not imply identical life circumstances, resources, authority, or degree of causal participation in the conflict.

Confidentiality

Information connected with mediation is protected within established limits. Confidentiality is a property of the information-sharing regime, not an absolute guarantee that anything said will never under any circumstances become subject to further consideration.

Cooperation

Cooperation means participating in an agreed process of seeking a settlement. It does not require abandoning one’s thesis, recognizing the other’s position as true, or accepting a compromise.

In Russia, voluntariness, confidentiality, cooperation and equality of the parties, and impartiality and independence of the mediator are precisely the principles enshrined in Article 3 of Law No. 193-FZ.

5. Neutrality Is Not Symmetry of Assertions

One of the most dangerous substitutions occurs when a mediator considers it necessary to declare any two conflicting positions equally well-grounded because the mediator must be “neutral.”

Consider a dispute:

A asserts: “The item I handed over was not returned to me.”
B responds: “I returned it.”
Transfer documents and other available evidence exist that the parties can examine.

The requirement to give B the right to speak does not entail an obligation to consider B’s assertion as equally substantiated as A’s.

Equal participation in a procedure does not imply equal epistemic weight of theses.

A mediator may refrain from assuming the role of a judge who establishes facts with binding force. But declining to render such a decision does not transform the established and the unknown into two equivalent states.

We must also distinguish:

Neutrality regarding the outcome: the mediator does not impose a solution serving their interests.
Procedural impartiality: the mediator does not create unjustified advantages for participants.
Epistemic evaluation: the grounds for one thesis may differ substantially from the grounds for another.
Normative constraints: the content of an agreement must remain within the applicable legal limits.

The United Nations Guidance for Effective Mediation emphasizes that impartiality is not the same as neutrality regarding the principles and norms binding the intermediary.

Not taking a subject’s side and not declaring opposing assertions equally valid are different operations.

6. Mediation, Truth, and Accountability

Mediation primarily seeks to settle a conflict rather than necessarily establish all circumstances through a court proceeding. But this difference in goals cannot be turned into permission to ignore facts.

Different situations are possible:

The parties agree about events but differ in their evaluation of the consequences.
The parties disagree about obligations and permissible means of fulfilling them.
The parties dispute the events themselves.
The parties acknowledge certain facts but dispute causation and accountability.
One party possesses corroborating evidence, while the other responds with unsupported assumptions.
The parties are prepared to agree on future behavior without arriving at a shared reconstruction of the past.

These are distinct dispute structures. They cannot be collapsed into a single statement that “everyone is right in their own way.”

It is particularly important not to replace the question of accountability with a requirement that “both make concessions.” If a dispute concerns harm caused, discussion of remedies must not imperceptibly shift to a presumption that both sides bear equal responsibility for the event.

Settlement need not imply admission of fault. Conversely, an agreement must not automatically be treated as refuting previously substantiated circumstances.

7. Formal Equality and Actual Inequality of the Parties

The right to speak does not guarantee equal freedom to refuse.

Participants may be in relationships of workplace subordination, material dependency, or unequal access to information. One party may be able to end negotiations without serious loss, while the other fears the consequences of refusing.

The presence of a third person does not automatically remove such asymmetry.

This raises questions about organizing the process:

Does each participant retain the possibility of refusing without coercion?
Do participants know the consequences of the proposed obligations?
Are they capable of independently evaluating the settlement terms?
Is pressure being disguised as “the search for a mutually beneficial compromise”?
Can an intermediary ensure appropriate procedural conditions without appropriating the decision of what a participant must accept?

In some conflicts involving pressure, threats, and dependency, mediation may be an unsuitable form of settlement. This is not a defect of the participant who rejects it: the procedural form has no independent priority over the subject.

Mediation research separately examines power and actual inequality, problems that cannot be resolved simply by requiring the intermediary to be neutral.

8. Mediation Is Not Coercion into Compromise

Compromise is one possible outcome of negotiations, not the definition of mediation.

The phrase “the truth lies somewhere in the middle” follows neither from the existence of a conflict nor from the participation of a mediator.

If one party demands fulfillment of an existing obligation while the other refuses to fulfill it, a proposal to split the demand in half does not become fair merely because it is arithmetically symmetrical.

An agreement might provide for full satisfaction of a demand, changes to deadlines, clarification of actions, mutual obligations, acknowledgment of particular circumstances, or another solution accepted by the parties within permissible limits.

A party may also conclude that negotiations have no prospect of success. The right to disagree is part of the independence that the procedure is organized to preserve.

A mediator must not turn the number of concluded agreements into grounds for putting pressure on participants.

Form	Role of the third person	Who decides the substance
Direct negotiation	May be absent	The parties themselves
Mediation	Organizes and supports negotiation; assists with developing a decision	The parties themselves
Facilitation	Helps organize group discussion, not necessarily connected to a dispute	Participants within agreed rules
Arbitration	An arbitrator resolves the dispute under established procedures	The arbitrator or arbitral panel
Court proceedings	A court examines a case under procedural rules	The court
Legal consultation	A specialist explains law and legal options to a particular client	The client independently chooses subsequent actions; the dispute may later be resolved by other actors

Mediation must also be distinguished from judicial conciliation: these are not wholly identical procedural arrangements in the Russian system.

The label “intermediary” decides nothing by itself. The essential distinctions concern whether the third person has the authority to issue a binding decision, whose interests they represent, which procedures apply, and whose consent is required.

10. Areas of Application

Family Disputes

Subjects of discussion may include arrangements for communication, participation in raising children, division of property, and the procedure for fulfilling agreements. But reaching an agreement must not be made the supreme goal at the expense of the rights and safety of those concerned.

Employment Relations

Mediation may be used for individual disagreements between employee and employer within legally prescribed limits. Formal equality at the negotiating table does not eliminate workplace dependency. Law No. 193-FZ expressly excludes collective labor disputes from its scope.

Civil and Property Disputes

Parties may discuss restoration of a violated situation, terms of compensation for harm, fulfillment of an obligation, or changing the manner of performance. Mediation can take place before going to court or during an existing court dispute.

Business Relations

Partners and organizations may negotiate deadlines, the scope of performance, cost allocation, future cooperation, or termination of their relationship.

Organizational and Interpersonal Conflicts

Informal mediation practices also warrant analysis, but not every instance of assisting negotiations should automatically be called a legal mediation procedure.

11. Mediation in Russian Law: Boundaries of Common Assertions

11.1. “Mediation Always Takes Place Outside Court”

No. Mediation is an alternative dispute-resolution procedure, but it may be applied after a dispute has been referred to a court or arbitral tribunal, before a decision on the dispute is issued (Article 4 of Law No. 193-FZ). This does not make the mediator a judge.

11.2. “All Information Will Remain Between the Participants and Can Never Be Used in Court”

That assertion is too broad.

Article 5 of Law No. 193-FZ establishes confidentiality subject to exceptions provided by federal law and agreement of the parties. It specifically regulates the use in court of certain categories of information from mediation: proposals to initiate the procedure, opinions regarding settlement, acknowledgments made during mediation, and willingness to accept proposals.

This does not entail that any previously existing evidence becomes forever unavailable to the court merely because the parties discussed it during mediation.

11.3. “The Mediator Never Proposes Solutions”

Russian law provides a more precise formulation: a mediator may not make settlement proposals unless the parties have agreed otherwise (Article 11, Part 5). Even an agreed right to propose an option does not include a right to impose it.

11.4. “The Mediator Is the Legal Adviser of Both Parties”

No. Law No. 193-FZ prohibits a mediator from representing either party or providing either party with legal, advisory, or other assistance (Article 15, Part 6). A participant can discuss their legal position with an independent adviser of their own.

11.5. “Mediation Takes Several Days and Is Necessarily Cheaper than Court”

Neither a fixed duration nor financial savings follows from the definition of the procedure. Duration and costs depend on the subject matter, complexity, terms of participation, agreements reached, and applicable legal restrictions. Mediation can reduce costs, but promising a specific duration or guaranteed savings requires independent grounds.

11.6. “Mediation Can Be Used in Any Conflict”

No. The scope of a particular legal procedure is limited by law. For example, Article 1, Part 5, of Law No. 193-FZ excludes collective labor disputes, as well as certain disputes affecting the rights and legitimate interests of third persons not participating in the procedure or public interests.

12. Possible Outcomes of Communication

Reducing evaluation of mediation to the binary scale “agreement reached / agreement not reached” conceals several different outcomes.

We can distinguish:

Coordination of demands: the parties established specific mutual obligations.
Partial settlement: a particular part of the disagreements was resolved.
Clarification of the dispute: the parties determined exactly where they differ and which assertions must not be conflated.
Changed conditions of future communication: the parties agreed on procedures for subsequent interaction.
Termination of negotiations: one or more participants decided not to continue the process.

However, discovering these outcomes does not imply that any communication involving an intermediary is necessarily beneficial. In a particular case, the process may involve wasted time, additional expenses, pressure, or attempts to transfer accountability.

The existence of a useful communicative operation does not automatically justify the entire procedure in which it occurs.

13. Mediation as a Form Created by Subjects

Mediation does not exist separately from the relationships between its participants. It is not a mechanism that automatically turns conflict into agreement.

It emerges through the actions of subjects:

recognizing the existence of a disagreement or dispute;
agreeing on a particular form of interaction;
admitting a third subject to organize the conversation;
establishing rules of participation;
presenting and investigating demands;
accepting or rejecting terms of settlement.

A mediator is not a device that automatically translates incompatible positions into one common position. The mediator also remains a subject whose questions, distinctions, and choice of discussion order influence what happens.

Therefore, it is necessary to investigate not only the disputants but also the intermediary’s powers, operations, and accountability. The mediator cannot be declared neutral simply because of the role’s title.

14. Questions for Further Investigation

What exactly is transformed when moving from a conflict without an intermediary to mediation: the character of relationships, the order of remarks, the conditions of understanding, or ways of making decisions?
Can a mediator remain impartial if one party persistently replaces substantiated circumstances with unsupported hypotheses?
Where is the boundary between a clarifying question, an interpretation of what was said, and imposing a new meaning?
At what point does the desire to reach an agreement become pressure on subjects?
Can recognizing actual inequality between the parties require changing the procedure without implying support for either substantive position?
What distinguishes informed and free consent from formal consent obtained under conditions of dependency?
How can one identify a situation in which a “search for compromise” actually serves to transfer accountability from one participant to another?
What may a mediator legitimately consider a result of their work if no agreement was reached?
When is a participant justified in refusing to turn a question of truth, law, or accountability into an object of bargaining?
Which actions of an intermediary change the conditions of communication even when they do not issue decisions or support either party?

15. Final Distinction

Mediation is an organized communicative procedure in which an independent intermediary assists conflicting subjects in examining their disagreements and seeking a means of settlement, while the parties themselves retain authority to accept or reject a decision.

Neither mandatory compromise, nor the factual equivalence of positions, nor the need to abandon the establishment of accountability follows from this definition.

The mediator does not assign subjects a common truth and does not appropriate their decision. The mediator’s participation organizes a space of communication in which subjects can distinguish the subject matter of the dispute, investigate the conditions of agreement, and independently determine whether they are prepared to accept the proposed obligations.

Sources

Federal Law No. 193-FZ of July 27, 2010, “On an Alternative Procedure for Resolving Disputes with the Participation of an Intermediary (Mediation Procedure)”. Articles 1–5, 9, 11, 12, 15.
Article 11 of Law No. 193-FZ: Procedure for Conducting Mediation. In particular, the possibility of agreeing that the mediator may make proposals and the prohibition on granting one party a preferential position.
Article 15 of Law No. 193-FZ: Requirements for Mediators. Prohibition on representing parties and providing them legal or advisory assistance.
United Nations Guidance for Effective Mediation (2012). Voluntariness, impartiality, normative frameworks, inclusivity, and organization of negotiations.
European e-Justice Portal: Principles and stages of mediation. Principal procedural principles and their application.
Power, Empowerment and Difference in Mediation. Mediation Law and Practice, Cambridge University Press, 2007. The problem of actual asymmetry of power among participants in the procedure.