At its core, mediation is a facilitated conversation among parties in conflict. The substance of that conversation, and to a certain extent the process through which it takes place, are largely determined by the parties. Within that process, the mediator’s role is to help parties: understand their underlying interests and motivations; communicate those interests and motivations to the other side clearly and effectively; maintain an open dialogue in a safe and confidential environment; evaluate the costs and benefits of continuing versus resolving the dispute; and explore options for resolution.
The Benefits of Mediation
There are countless benefits to mediation. Even the most complex disputes are often capable of being settled quickly and efficiently, saving the parties time, money, and the emotional toll that may accompany protracted conflict. And because mediation is voluntary, the parties remain in total control over the outcome. Nothing is resolved unless all parties agree. Mediated agreements are also inherently flexible. They are not limited by what the law may provide as legal remedies, and can incorporate terms that might not ever be awarded by a judge or a jury. Out-of-the-box thinking is encouraged, and is sometimes necessary in order to bring about an agreement.
The Mediation Process
While parties may have some input in the process itself, the mediator takes the lead in designing a process that, given the players involved (parties, counsel, and other participants) and the nature of the conflict, will be most conducive to a productive dialogue.
Typically, I begin mediations prior to the initial session. I request that each party provide me with a pre-mediation brief, which sets out their concerns, evaluation of strengths and weaknesses of their position, and goals for mediation. Armed with this information, I conduct individual telephone conferences to get a better feel for the parties and the dynamics between them, how the conflict arose, and the parties’ interest in a resolution. Getting a handle on these things early allows everyone to hit the ground running when the formal session begins.
On the scheduled date, I may start with a joint session. It depends on the needs of the parties. While I prefer to conduct mediations in joint sessions as much as possible, I understand that for many reasons the parties may prefer to conduct the negotiation from separate rooms. Whether we start together or apart, I use this time to touch base with the participants, and give the parties a chance to raise any additional issues or concerns they may have.
From that point forward, what happens in the room (or rooms) is extremely variable, and primarily depends on what impediments and pathways there are to settlement. If the process ultimately leads to the parties resolving their dispute, the parties may choose to memorialize material terms or even the entire agreement at the mediation, or they may decide to put the agreement in writing later. If progress is made but no agreement is reached by the end of the session, I can continue to work with the parties—by telephone or in person—to bridge any gaps that remain.
Maximizing the Chances for a Mediated Resolution
Mediation often results in negotiated agreements. It works. But a successful mediation does not happen by accident. Rather, in order to maximize the chances for settlement, the parties must be serious and committed. They must come prepared and in good faith, bring those with the necessary authority to settle, have open minds, be flexible and patient, and, as much as they can, focus on the future. If parties come to mediation in the right frame of mind, anything is possible.