Mediation 101: primer for clients that may be new to the process and may be unfamiliar with the role of the of the mediator. What is “mediation,” and what to expect of the mediation process?
Mediators assist disputants in working together to craft a resolution that each side values, and they encourage the parties to share information about their positions and explore innovative means of coming together.
Potential benefits of mediation.
This is an outline of the potential benefits of mediation:
• provides a less expensive, faster means of resolving disputes than arbitration or litigation. Reducing the amount of time and money you devote to a dispute can ease conflict and build a better relationship.
•. gives disputants a private, controlled forum in which to express their emotions and points of view. Under the guidance of a mediator, parties often develop more creative, novel solutions than an outsider, such as a judge, would reach for them.
• allows the parties themselves—not the mediator—an opportunity to determine the outcome. Rather than one side emerging as the “winner” and the other as the “loser” (as in a lawsuit), parties try to reach an agreement that pleases both. The collaborative nature of mediation increases the likelihood that both sides will comply with any agreement that emerges.
What happens at mediation.
1. Planning. Before mediation begins, the parties provide the mediator a confidential and privileged memorandum of issues and positions, and a copy of core pleadings and relevant documents.
2. Mediator’s introduction. With the parties gathered together in the same room on the day set for mediation, the mediator introduces the participants, outlines the mediation process and goals, and lays out ground rules.
3. Opening remarks. Following the mediator’s introduction, each side has the opportunity to present its view of the dispute without interruption. In addition to describing the issues they believe are at stake, they may also take time to express their feelings and sentiments.
4. Joint discussion. After each side presents its opening remarks, the mediator and the disputants are free to ask questions with the goal of arriving at a better understanding of each party’s needs and concerns. Because disputing sides often have difficulty listening to each other, mediators act like translators, repeating back what they have heard and asking for clarification when necessary. If parties reach an impasse, mediators diagnose the obstacles that lie in their path and work to get the discussion back on track.
5. Caucuses. Following the joint session, the disputants break into separate rooms for private meetings or caucuses. Unless instructed otherwise the information shared in caucus remains confidential. The promise of confidentiality encouraged disputants to share new information about their interests and concerns.
6. Negotiation. At this point, it’s time to begin formulating ideas and proposals that meet each party’s core interests—familiar ground for any experienced negotiator. The mediator can lead the negotiation with all parties in the same room, or he can engage in “shuttle diplomacy,” moving back and forth between the teams, gathering ideas, proposals, and counterproposals.
When putting together your settlement proposal, ask your mediator for advice. His conversations with the other side have probably given him knowledge of its interests that you can use when packaging your proposal.
7. Environment. The most favorable environment is characterized by a safe, non-threatening space where the disputants are confident that their positions are heard and understood. Mutual respect, dignified presentations, realistic expectations and participatory processes are common ingredients of a mediations that are most likely to succeed.
Conclusion of the Mediation Process.
Depending on the complexity of the issues, mediation might last mere hours, or it could last all day or several days.
If the parties reach a consensus, the mediator will outline the terms and will prepare a draft agreement.
Some resolutions will truly be win-win, while others will be just barely acceptable to one or both sides—but better than the prospect of a continued fight or court battle.
If you fail to reach agreement, the mediator will restate where the disputants left off and they may continue a post-mediation discussion of possibilities and alternatives.