Professional mediators and accredited alternative dispute resolution (ADR) practitioners often make the mistake of assuming that the word “mediation” is understandable by consumers of ADR. Yet it is not. Neither do a majority of prospective clients appreciate what mediation entails. What mediation is features as one of the most frequently asked questions I am called to answer in and outside training events and public speaking engagements.
Mediation is a consensual process whereby parties in dispute appoint a third party neutral (who has no interest or stake in the subject matter of the dispute) to facilitate resolution of their dispute on mutually agreed terms. Mediation, which is also commonly referred to as conciliation, is a dynamic, structured, interactive process in which a neutral third party assists disputing parties in resolving a dispute through the use of specialized communication and negotiation techniques. The process is voluntary, confidential, and the mediator/conciliator does not render a decision, but helps the disputants to generate a mutually acceptable outcome.
Mediation and other ADR mechanisms guarantee party control of the process, informal and simplified procedures, expedition (quick to commence and conclude), cost-effectiveness, and quality outcomes (a mediation agreement generated by the collaborative effort of the parties). The process maximizes on quality procedures and quality outcomes that serve to restore, maintain and strengthen the family or business relationships often destroyed by unresolved disputes.
What Does the Process Entail?
Let us begin by appreciating that every legal relationship is characterized by rights and obligations. In an attempt to assert those rights or to enforce the corresponding obligations, the relationship stands the risk of conflicting interests. In turn, the conflicting interests might escalate to full-blown disputes, which the parties may elect to take upon themselves to resolve or seek the assistance of a third party neutral. Where negotiation fails, the next most appropriate step is to seek the assistance of a professional mediator, who has no interest or stake in the outcome of the process.
How Mediation Works
When parties in dispute fail to reach a negotiated agreement, one or all of them might agree to submit to mediation. If so agreed, one of them (or all of them jointly) identify and appoint a mediator. Once appointed, the mediator commences the process by communicating with each party separately to establish (a) their identity, addresses and other personal details; (b) the nature of the dispute; and (c) whether they voluntarily submit to the process of mediation. The mediator might, at this stage, require the parties to confirm their submission to mediation by signing and returning a draft Agreement to Mediate containing the mediator’s terms of engagement. Alternatively, the mediator might reserve the Agreement to Mediate and terms of engagement to the introductory meeting convened immediately upon confirmation by the parties of appointment and submission to the process.
At the introductory meeting, the mediator (a) confirms the identity of the parties and, in the case of corporations or other institutions, confirms representation and authority to negotiate and bind the principal; (b) explains the process of mediation and the role of each player in the process; (c) lays and explains the ground rules; (d) seeks concurrence on the terms of engagement; (e) requires the parties to sign the Mediation Agreement; and (f) invites brief representations to ascertain the nature of the dispute and the issues in contention.
The first meeting might also serve as the beginning of the substantive process. In a less complex dispute, the mediator might choose to facilitate resolution of the issues in contention in a systematic manner so as to help the parties to reach agreement on each issue towards a mutually generated outcome. Indeed, it is not difficult to resolve all issues in one sitting and reach a mediated settlement in a matter of hours. In practice, three to four hours are considered ideal for mediated settlement of a not-too-complex a dispute involving many parties, corporations, government agencies, and other institutions, whose subsequent approval might be required for settlement of disputes that touch on matters of policy or other high stakes.
While joint sessions are preferable, private sessions (commonly known as caucuses) with the mediator often become necessary. In private sessions, the mediator sits with one party at a time in privacy to hear their position, proposals and desired terms of settlement. The mediator undertakes not to disclose any information shared in confidence to the other party without the express authority of the disclosing party. The information disclosed in confidence serves to equip the mediator with insight on the respective positions and goals of the disputants, which in turn helps to generate proposals and settlement options designed to bridge the emerging gaps and eliminate barriers that impede settlement on mutually agreeable terms. In addition, the mediator uses private sessions to take a test of the corresponding proposals for settlement and give the parties the opportunity to weigh their best alternatives to negotiated agreement (BATNA).
At the ensuing joint sessions, the mediator uses knowledge of facts supplied in private sessions to steer negotiations towards mutually agreeable settlement options. This process might acquire a back-and-forth style of engagement with the prospects of settlement on every issue in contention. However, caution is exercised to ensure that every corresponding proposal traded by the parties is realistic and mutually beneficial. In the process, the mediator skillfully conducts the discussions in such a way as to eliminate any apparent imbalance of power or attempted dominance by any of the parties over the other. Accordingly, equality of arms becomes the mediator’s primary task to guarantee. Only then would all parties feel appreciated as they engage in generating mutually acceptable outcomes.
Then comes the big leap to final settlement, and broad smiles light the room. A shaking of hands in light conversation gives the mediator a brief moment to sum up all the terms of settlement for confirmation by all parties. This done, the mediated settlement agreement is ready for execution. And this is what happens eighty percent of the times a mediator conducts such ADR sessions.
Conclusion
It is deeply satisfying to mediate in disputes between marriage mates, family members, bankers and clients, insurers and claimants, and see them walk out of the mediation room with big smiles on their face, having reached settlement in their own terms. Their tears of joy spur me on to tell people what my colleagues either do not know or do not wish to disclose to the disputants.
Premier ADR Consultants work hand-in-hand with entrepreneurs and marriage mates with strained business or marital relations on the verge of breakup or separation to resolve their disputes by means of our transformative conflict management and dispute resolution strategies. We help parties salvage, restore and maintain healthy business and family relationships in a safe and peaceful environment with guaranteed privacy and confidentiality.
Our expeditious, cost-effective and party-controlled techniques guarantee consumer satisfaction resulting from the voluntary and jointly generated win-win outcomes. We provide the best alternative to the all-familiar costly, time-consuming, adversarial and often emotive court litigation that only works to weaken and ultimately destroy business, marital and family relations.
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