This is the first of a 3 part blog on the topic of mediation, I hope you enjoy it.
Mediation helps people resolve or better manage disputes by reaching a resolution that they would not normally see at trial. A mediation allows the resolution to be creative and provides the opportunity for the terms to be flexible. Unlike at trial where the parties are left with the finite ruling of the triar of fact, the judge. As you consider what you will say in your mediation, keep this goal in mind.
What mediation is not
Mediation is not debating. It does not require you to prove that you are right and the other side is right or wrong. Unlike debating, mediation is not intended to have a “win-lose” outcome. In fact, it is often the failure of “debating” that leads people to seek the help of mediators! unlike the court system, the mediation process is not intended to find fault, assign blame, or punish anyone.
Finally, mediation is not something people are likely to do successfully if they are mandated to participate in it against their will. It needs to be voluntary.
What mediators do
Mediators will play an impartial role as they attempt to help you resolve the dispute. They do not take sides with either party. Their job is to assist you in understanding one another and in reaching a middle ground. To do this, they establish ground rules and ask questions (usually to one person at a time). They will help you identify the issues and interests in need of resolution. Once issues and interests are identified, they will encourage you to brainstorm solutions.
What mediators don’t do
mediator(s) do not:
- make decisions for you and/or the other person about how your dispute will be resolved.
- talk with others without your permission about how the mediation went. T
- determine who is “right” or “wrong. ”
A different kind of conversation
At mediation, typically there is an open session where both parties present their respective positions. There may be opportunity to ask questions and clarify points before breaking out into seperate rooms. This is where the mediator can be most effective. During the initial open session, the mediator may ask questions that will help her/him understand the perspective of each party. It also allows the person not speaking to hear the perspective of the other party. During the “breakout sessions” the mediator will speak privately to each party in an attempt to find some common ground or common agreement on some points.
Seeking common ground
Imagine how you would feel if the only solutions mediation produced were those acceptable to the other party. You certainly would not agree to them. Similarly, if the only solutions produced were those acceptable to you, the other party is unlikely to agree. For many people in a dispute (especially after it has become “heated”), it does not feel “natural” to focus on finding solutions acceptable to the other party involved. However, the reason you are involved in a dispute with the other party is that s/he disagrees with your poistion. Finding ways to address those points of disagreement as well as your concerns will help resolve the problem more quickly.
Be honest and be tactful
While honesty is very important, tact is also important in mediation. Some people say, “i was just being honest” or “i was just being direct” to justify saying insulting or tactless things to the person with whom they mediate. This person tells her/himself, “i was honest. If the other person couldn’t take it, that’s her/his problem. ” just because you think something, you don’t have to say it. You do not have to choose between “being honest” or “being tactful. ” obviously, if you are going to seriously address an issue, you need to be honest about what the issue is. But there are numerous ways to say the same thing. A tactful approach is more likely to help you get the other parties cooperation than a tactless one.
Keep an open mind
You probably know how you feel about the dispute and what problems you think need to be resolved. You could probably describe how the other person case is lacking and how your case is stronger. And, you could probably name the most important issues to your case. All of that is good because you will need to discuss these things in mediation. But, you may know less about how the other parties case and how s/he sees it. In fact, many people make the mistake of assuming that the other parties case is without merit. This is almost never true! Most people engage in a dispute because they have genuinely different positions, expectations or information, how would you answer the following questions?
- how does the other party feel about the dispute?
- how would s/he define the problem(s) that need to be resolved?
- how would s/he describe my presentation during the opening session?
- what are most the most important issues to the other party?
If you cannot confidently answer the above questions, you have just discovered a potentially important clue for unlocking the dispute! This is where the mediator can play an active role in bring ing the parties closer together. The mediator can assist in outlining the other sides position and at the same time share information from the other room that will help both sides come to a middle ground.
Try to understand the issues expressed by the other party exactly as s/he sees them. This does not mean you have to agree with what the other person says or abandon your own position. It only means you understand where the other side is comong from. To accomplish this during the mediation, this means you will need to listen carefully to what the other person says. If you see things differently, you will have an opportunity to explain that. But disagreeing before the other person knows you understand exactly what s/he has said tends to discourage cooperation. The mediator(s) will guide the discussion so both parties will have the opportunity to hear the concerns of the other party. While it may be difficult to listen to a point of view with which you disagree, what is said may reveal important and helpful information for you.
In part 2 i will touch on mediation strategies