Mediation is the process in which a neutral third person, the mediator, helps parties reach a settlement to their dispute by opening up lines of communication, evaluating positions and issues involved, identifying each party’s real needs and arriving at a solution which is agreeable to both sides.
At the heart of every successful mediation is a skilled Mediator, one who is able to get the parties to voice their concerns in an objective way, setting aside the emotional aspects of the dispute. He will steer discussions to focus on the issues rather than personal attacks. This process may take a day, a week, or longer. It is a ritual of give and take, of back and forth, as the mediator meets with each party in private. It has been said that “you can’t short circuit the dance of the mediation,” and the mediator will keep the mediation going for as long as it takes if he sees that progress, however small, is being made.
Crucial to the success of mediation is a willingness by the parties to cooperate in the mediation process and a willingness to be open minded and willing to considering alternate ways in which to arrive at an agreement. Often issues that the parties did not realize were important become apparent later in the mediation sessions and a solution is able to be reached.
What is a skilled mediator? A skilled mediator is one who listens and listens effectively. The mediator will show compassion and understanding and allow the parties to vent their anger, tell their story, reveal their frustration. The mediator will be patient and nonjudgmental. The mediator will emphasize that anything discussed in a private session will be kept strictly confidential. The mediator’s job is not to decide who is right or who is wrong. Their job is to find a common ground where the parties can come to an understanding. Simply listening to the opponent can act as a type of catharsis – it reveals important clues to the mediator and it conveys a sense of trust and confidence in the mediator to the opponent. If a party feels they have been listened to and understood, they generally are more inclined to yield their position and more willing to resolve their dispute. The mediator will summarize what the party said, confirm what is important, and then reframe the conversation and shift the focus from one of emphasizing a “position” to one of interests and issues.
As an impartial and neutral third party, mediators do not judge or make quick assessments, but rather they allow the parties to explore options, to vent their anger or frustration, to reach an understanding of what it is they really want, and to put aside any personal grudges they may have against the opposing party. The skilled mediator is creative and intuitive and will find new solutions to existing problems. They are sympathetic to both sides, and have a sincere wish to see a settlement reached. Mediation is not just about reaching a compromise but it is also about considering new opportunities and then adapting and responding to them in a way which will achieve the parties’ objectives.
Statistically, mediation is effective about 80% of the time. Not only does mediation avoid the emotional stress of a legal battle and the time that may take, it saves hundreds, perhaps thousands of dollars in legal and court fees. It can bring rationale and logic to a seemingly irrational and emotionally charged issue.
What are the three questions a mediator will ask?
- What do you want
- How do you want it?
- When do you want it?
The most important thing a mediator does is listen. Mediators are taught to listen 80% of the time, to pick up on key words the person uses, and then to ask them to explain. The mediator will display empathy by saying such things as, “I understand what you say,” “I can understand your frustration/anger under the circumstances,” “clarify the issues so I can understand.” Mediation is about focusing on the positives. “Look how far we’ve come,” and encouraging the person to look at something from a different perspective. “What if…” and “let’s focus on the future.” A mediator will ask open-ended questions. “Tell me More – how do you feel”.
The more the mediator can get a person to talk about what is bothering him, to reveal what really matters (it may revealed to be only a small thing), and show a willingness to at least consider other solutions, the better chance the mediator has to reach a settlement.
“Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses, and waste of time. As a peacemaker the lawyer had a superior opportunity of being a good man. There will still be business enough.”
Abraham Lincoln, “Notes for a Law Lecture,” circa 1850.
How Does Mediation Begin?
Mediation begins with a joint meeting of the parties together with the mediator and in some cases a lawyer may be present who represents one of the parties. The mediator will outline what will happen during the mediation process, how the day will begin, and what eventually they hope to achieve. The mediator will then meet with each party in private, and confidential sessions. At the private sessions continue, the mediator will continually look for a middle ground – some common thread that both parties wish to achieve. He will ask probing questions, intended to help the parties determine what it really is they want, which often is not what they originally thought. The mediator steers the parties from preconceived ideas to a willingness to consider other options. The mediator will use his experience and creative thinking to make viable suggestions, without taking sides or making a judgment in any way. In mediation, there is no winner or loser – there is settlement.
The Mediator’s Opening Statement
- The mediator will introduce himself
- Introduce the parities to each other
- Thank everyone for coming and ask how they would like to be addressed (first names, last names?)
- Ask if they have signed an agreement to mediate
- Voluntary, non-binding to the point of agreement, without prejudice
- Mediation is confidential and the aim is that the parties come up with a solution
Role of the Mediator
- To guide the discussion, clarify the issues, not to judge, not form a view or impose a decision and act as devil’s advocate- asking sometimes difficult questions
- The parties will be asked to present their understanding of the case — this is the opportunity to hear important facts and issues which each side believes are important
- The mediator will not interrupt the person talking and then explain that they will meet in individual meetings following the opening statement.
- Explain that private meetings will be absolutely confidential
- The aim is to come up with an agreement satisfactory to all.
- When agreement is reach, it is formalized at a closing joint session
- Agreement will be put in writing in a form agreeable to parties
- Everyone receives a copy
- The mediator will thank everyone for participating and asked to remember that the purpose is to reach a settlement.
- The mediator will ask if there are any questions before they begin.
“How long will the process take?
- The mediation may take several hours, a day, or longer. Normally, the parties agree to a approximate time, such as four hours, or eight hours, depending on the complexity of the case.
How much do mediators charge?
- Mediators may charge a set fee or a fee plus an hourly rate, depending on the dispute.
An ancedote: “All I really wanted was an apology”
I was in a mediation in which a high-powered Landlord of commercial property had a dispute with a Tenant. The Landlord was a large man, with shoulder-length hair, gold chains around his neck and large rings on his fingers. His voice was deep and imposing. He came to the mediation with his lawyer, a confident looking man with a shiny leather briefcase and a suit and tie. The two men looked imposing. The Tenant, on the other hand, appeared to be a mild-tempered man, conservatively dressed in a short-sleeved shirt, conservative slacks, a downward look on his face, and unrepresented by a lawyer. It took some effort for me to not form an instant opinion – one party, the Tenant, who didn’t seem to have a chance facing a formidable opponent who seemed daunting. Although I was familiar with the basic facts of the case, being given material to read before the negotiations began – statements from the parties, various relevant facts and legal documents, I still had a hard time wondering how these two opposing personalities could settle.
After a long day of negotiation – back and forth – numbers and sums on a blackboard, diagrams of the dispute, listening as the parties as they became more and more emotional, and then irrational in their demands, it appeared that this mediation would end without a settlement. The Tenant was willing to give up everything – his lease, which still had two years to run, money the Landlord owed him, and possibly jeopardize his established business by having to relocate. By 8:00 P.M. everyone was worn out and exhausted. In my final private session with the Tenant, I asked one last time, “ Out of everything else, what is most important to you?” The Tenant leaned forward in his chair and looked me in the eye. “What I really want, more than anything else, is an apology.” If the Landlord would apologize, the Tenant was willing to take half of the money the Landlord owed him, sign a new ten year lease, with rent increases, and settle the matter that day. Miraculously, in my private session with the Landlord, he sat back in his chair, nodded his head slightly, looked me in the eye and agreed to all the terms.
It seems sometimes an argument boils down to attitude and pride. Once that is set aside, the issues seem to work themselves out in an amicable way.
Mediation – Quick Tips
Forget the facts – Make no Assumptions – Search for new options
Listen 80% of the time – pick up key words
Always look forward – focus on the future
Separate people from the problem – not positions but issues
Explore other options – look at them from a different perspective
Ask open-ended questions – “Tell me More” –– “How do you feel?”
Copyright © 2013 Sandy Gadow. All Rights Reserved. This article may not be resold, reprinted, resyndicated or redistributed without the written permission from Escrow Publishing Company.