Thinking About Mediation

WHAT IS MEDIATION: 

Broadly speaking, mediation is a process aimed at fostering communication between two or more parties who differ as to how a particular conflict should be resolved.  The conflict might be a legal dispute, an interpersonal problem, or a business deal where direct negotiation is not working.  The process is administered by a mediator, or “neutral”, whose role is to facilitate communication and to assist the parties in figuring out the best resolution options.   Often the parties can get a clearer focus on the problem as well as to expand their range of vision.

 

WHO ARE MEDIATORS: 

Typically today a mediator is one trained in the process.  A trained mediator is one who has been taught specific mediation skills developed by mediation professionals over many years under the guidance of trainers some of whom are found at educational institutions such as the mediation programs at the Harvard and the Stanford law schools and others.  While there are different mediation styles and methods employed in the field today, there are commonalities among all trained and ethical mediators.  First is the principal of neutrality,  meaning that they do not take sides or attempt to manipulate the process in favor of one party over another and that they must maintain their neutrality throughout the process.  Second is the principal of fair and honest communication, which the mediator attempts to facilitate.  The third is that they attempt to aim the process toward a resolution based upon a durable agreement, which means an agreement (usually in writing) reached after full consideration of the options.

 

THE MEDIATOR DOES NOT JUDGE:

The mediator facilitates communication, but does not make judgments.   Making a judgment would likely compromise the mediator’s neutrality.  For the same reason the mediator does not give legal or other professional advice.  The mediator sets the stage for effective communication as distinguished from posturing and bluffing.  The parties are encouraged and often “coached” in the processes of active listening and effective description of their concerns.   The mediator also acts to regulate and moderate the procedure and, where appropriate, to remind the parties of agreed upon guidelines. 

 

CONFIDENTIALITY: 

An important feature of mediation, and a reason it is so often successful, is that as a matter of law, with limited exceptions,  what is said in the mediation session(s) cannot be aired in court.  Mediation parties sign an agreement that recites that all such communications will be held in confidence.  Thanks to these confidentiality protections the parties are able to speak their minds in mediation without fear of having their statements later used against them in some fashion.

 

WHO MAY ATTEND THE MEDIATION: 

There are no hard and fast rules.  Generally it is better to keep the number of persons at the table to a minimum.  However, it is permissible,  with advance notice to the mediator(s), to have a professional representative, to bring witnesses, to have the company of care givers, and to bring companions who are intimately interested in the resolution outcome.

 

LENGTH OF MEDIATION SESSIONS: 

Generally it is believed that sessions should be limited to a period agreeable to the parties and that does not go on so long as to cause them to become unfocused through fatigue.  A full day may be necessary for the first session in some cases and in that event the mediator will encourage the taking of breaks and rest periods where appropriate.  Experience has shown that progress toward resolution is often accomplished in very small increments, and that sometimes progress is being made even when it is not apparent to anyone at the table.  People do not always reveal their inclinations or the subtle changes taking place in their inclinations, and time may be necessary for such changes to become realized.  The parties are therefore encouraged not to jump to the conclusion that no progress is being made just because of the passage of time.

 

YOUR COMMITMENT: 

There is very little that your agreement to participate in mediation commits you to do.  Please remember, however, that when mediation is scheduled it means that several people have made arrangements of their time and place in order to accommodate the process.  Common courtesy calls upon all, therefore, to appear on time, to attend all scheduled sessions, and to cooperate in honest, good faith, and civil discourse during them.

 

 

WITH THESE UNDERSTANDINGS YOU ARE LIKELY TO FIND THE MEDIATION PROCESS A PLEASANT AND PRODUCTIVE EXPERIENCE.