It is better to live in a society where agreement takes the place of violence. It is better to live in a society whose social culture is based upon a willingness to understand the other. It is better to live in a society in which social cohesion overcomes antagonism. Mediation can make a substantial contribution in all these areas.
Prof. Aharon Barak
Mediation coexists well with the fundamental values of human dignity, autonomy of the individual, consideration for others, and peaceful relations between persons.
Prof. Yitzchak Zamir
1. Preface
Example A:
The Justice Ministries of the US and nineteen of the individual States initiate legal proceedings against a giant multinational corporation for infringement of anti-trust laws. The judge finds that offences were indeed committed, but suggests that the sides try to come to an arrangement regarding the ongoing relations between the company on the one hand and the authorities and the public on the other. A Federal judge is appointed to mediate. The mediation is unsuccessful. An alternate mediator is appointed and a strict timetable is adopted. The mediation is a success and a solution is adopted which will not unduly harm the corporation, while at the same time providing substantial benefits for the consumer.
Example B:
A concern in the natural resources field is unable to coexist with another concern working in the same area; disagreements between workers on the two sides is a common occurrence. Instead of imposing a solution which might lead to future conflict, the respected authority in the region begins a mediation-like process. A solution is found, allowing each concern to flourish in its own separate area.
The stories of the Microsoft mediation in 2001 and the agreement between Abraham and Lot a few millennia earlier are but two examples from among many, of successful use of mediation procedures, some more formal than others, to replace conflicts with agreements – or, in the words of Professor Barak, antagonism gives way to social cohesion. Given the success of mediation throughout the world, it has begun to be adopted in various frameworks whose purposes are to solve social conflicts.
The Israeli institution known as the State Comptroller's Office includes both the function of Auditor General and the function of Ombudsman. By law, the State Comptroller is also the National Ombudsman. The Ombudsman's Office is often called upon to find solutions to conflicts between members of the public and various governmental authorities. The expansion of mediation and other methods for conflict resolution (ADR – Alternative Dispute Resolution) is therefore a development that should be very relevant for the Ombudsman , as well as for the State Comptroller, as we shall see.
The Israeli Ombudsman's Office was of the view that there were indeed elements connected to mediation that could be of service to the Office in performing its function. It was decided, therefore, to undertake a pilot program in which certain complaints submitted to the Ombudsman would be directed to the 'mediation track', in an attempt to bring the sides to an agreed resolution of the complaint.
Following is a survey of some of the recent developments in the world of mediation, with an emphasis on methods used in relation to disputes in the public sphere. After a discussion of some of the basic principles of mediation, we will focus on the pilot project undertaken by the Ombudsman of Israel and its repercussions for dealing with complaints and for resolving conflicts related to state authorities. We will conclude by discussing how elements connected with mediation may be used in the future by the State Comptroller and National Ombudsman.
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