The mediation process involves disputants discussing their perspectives on the underlying dispute in a private setting that promotes open communication. It is less expensive than a trial and allows parties to settle disputes without damaging relationships or destroying their professional reputations.
The mediator makes an opening statement and gives each party the opportunity to speak uninterrupted. This helps the mediator to frame the issues and understand the parties’ emotional state.
The mediator’s role
The mediator helps the parties in dispute devise their own mutually acceptable solutions. He is an impartial facilitator who asks questions, reframes issues and assists the parties to understand each other’s positions.
The first mediation session consists of a joint meeting of the parties and their lawyers. At this meeting the mediator usually provides a process overview and details about what will take place in different sessions of mediation.
The mediator will encourage the parties to introduce themselves, present their perspective on the dispute and discuss what their mediation goals are. The mediator will also ask the parties and their lawyers questions in a way that helps him better understand what is driving each position. This is particularly important when the mediator is playing a facilitative role. Often times, disputes involve personal interests as well as business ones. Mediators can assist the parties in preserving or rebuilding relationships that are vital to their business operations.
The mediator’s approach
Because mediation proceedings are less formal than those of court or arbitration, there is an inherent flexibility that allows the mediator to take a flexible approach to the matter at hand. This flexibility allows the parties to focus on their own interests and find resolutions that would not be available in litigation or arbitration.
This flexibility also allows the mediator to deal with the complexities of the case in creative and innovative ways. Mediation is generally much faster and more affordable than formal litigation.
During mediation, it is important to avoid any imbalance of power or difficulty in communicating. Counsel are in a unique position to gauge their clients’ perception of how the mediation is proceeding and can provide useful advice to their client as needed. They can defuse a client’s anger by saving face, and they can offer a different perspective when an impasse threatens the possibility of a settlement. They can also suggest that the parties consider caucusing during a break in the mediation.
The parties’ interests
The mediator can help the disputants reach a settlement that is tailored to satisfy their own interests. This is a significant advantage over a judge’s decision that may not adequately address the parties’ needs and interests.
Mediation also increases the level of control that the parties have over the resolution. In contrast, in a court case, the solution is determined by the judge or jury. Moreover, a mediated agreement is fully enforceable.
The mediation process is usually private and confidential, subject to the exceptions in the Administrative Dispute Resolution Act. Parties can agree to more confidentiality than provided for under the ADR Act, but any additional terms should be documented in an Agreement to Mediate. Counsel can participate in the mediation, and should assist their clients in understanding the dispute, its potential for resolution, and the resulting terms of settlement. Nevertheless, it is the responsibility of the disputants to seek legal advice solely from their own counsel.
The mediator’s skills
A mediator must be able to understand and relate to different people, communication styles and issues. He must be able to think creatively to consider other possibilities that could resolve disputes, while also being aware of limitations and practicalities.
Mediators must be able to demonstrate credibility, which involves presenting themselves in a consistent manner and being able to clearly explain complex topics and situations. It also includes being able to assertively communicate boundaries with participants when necessary, such as letting a difficult participant know that refusing to respond to questions will result in the mediation ending.
Mediators must be able to “hold two realities,” which refers to the ability to simultaneously appreciate and understand each party’s reality from their perspective. This is accomplished through a combination of skills, including active listening, empathy (the ability to show that you understand the parties’ interests and concerns by exploring their concerns and questions, body language, repeating back and other techniques), and reframing.