Mediation — How Mediators Support Dispute Resolution
Mediation is a common method of alternative dispute resolution. It is used in a wide range of legal disputes from family to succession and employment. Unlike court litigation which is public, time-consuming, expensive, and adversarial, mediation is more of an assisted negotiation. Here, parties to a dispute meet in the presence of a neutral mediator to discuss the issues and find a solution. The meetings are confidential and focused more on mutual collaboration to solve legal problems amicably.
In mediation, the disputing parties are at the center of negotiations. They express their positions, make proposals, and negotiate until they find a workable solution that addresses their needs. Ultimately, they are the decision makers. The mediator is only a facilitator who guides discussions, keeping them constructive. This is different from court litigation, where a third party judge makes the final decision or arbitration.
While mediators only play an assistive role in mediation, the scope of their duties is expansive. Before the mediation process starts, a mediator will prepare their clients by introducing them to the process, contrasting it with court litigation, and affirming its problem-solving function. The mediator then informs the disputing parties of the procedures they will follow in the mediation, emphasizes the confidentiality of the proceedings, and clarifies their role as facilitators in the discussions. The parties must understand that ultimately, it is they who will come up with a solution.
Traditionally, mediation is considered a less formal way of resolving disputes, so it is usually devoid of the extensive paperwork and filing processes that characterize court litigation. However, if some documents or materials will be important in the mediation process, the mediator will facilitate their presentation and make them available to both parties. If there is a need to involve another party, the mediator will encourage their representation in the process. For example, in an insurance coverage dispute, it may be necessary to have a liability insurer present.
Further, the mediator will ensure the people participating in the mediation have sufficient authority to make decisions for their organizations. This is especially important in civil matters. It is frustrating to spend hours mediating, find a solution, and then have it rejected by a senior company officer, executive committee, or board of directors. In corporate matters, the mediator must ensure that the people representing corporations have sufficient decision-making authority to mediate on their companies’ behalf. Only afterward should the mediator arrange the first meeting.
Mediation meetings are held in private spaces suitable for discussions. The mediator will open the meeting and then guide the parties in framing the issues that need resolution. They will encourage the parties to propose solutions and evaluate the advantages and disadvantages of various proposals. The mediator should be neutral in the discussions and not speak for either of the parties.
If the disputing parties have their lawyers present, the mediator should prevent them from sparring with the other side, cross-examining the other party, or challenging them. Attorneys present should not treat mediation as a fact-finding mission but rather as a collaborative problem-solving opportunity. When the parties eventually agree on a solution, the mediator drafts the relevant documents.
Trained mediators can help diffuse tension in a room, lower temperaments, and support effective communication. They can help unearth less obvious interests and even suggest pathways of making solutions more workable for both parties. They are allies in the dispute resolution process, balancing between a neutral assistant and a constructive participant. Parties to a dispute who do not want to litigate in court should consider contacting a mediator to help them resolve their disputes.
Originally published at http://dougfederspiel.wordpress.com on August 25, 2021.