Saturday, August 23, 2008

Mediation: Shorter, Faster, Less Expensive
Mediation is getting a second look from companies concerned about hair-raising judgments and settlements from traditional court disputes. Should your organization be looking, too?

Mediation is a simple concept, says The Justice Center of Atlanta:

"Bring both sides of a dispute together. With the assistance of a neutral mediator, enable them to speak their mind fully, and to hear and understand each other. Help them find the common ground that may have existed all along, but was hidden by anger, or fear, or misunderstanding. That is the essence of mediation."

What should you expect at mediation? Here's a summary of the typical steps in the process:

1. Opening Statement by the Mediator

The mediator's opening statement sets the tone for the mediation and provides ground rules. The content is up to the individual mediator, but typically it covers the following:
  • Mediator's identity and qualifications.
  • Mediator's role. "I am not a judge or a decision maker. My job is to facilitate communication."
  • Assertion of neutrality and impartiality.
  • Ground rules for the process, and the mediator's expectations for the parties.
  • Confidentiality rules for what the mediator can and cannot reveal.
  • Confirmations:
    -That the parties are there voluntarily,
    -That they are prepared to attempt to resolve the dispute in good faith, and
    -That they have the authority to mediate and make agreements on behalf of the organization.

2. Opening Statements
Each party presents an opening statement, typically covering:

  • Its view of the dispute
  • The relief or resolution that it thinks is appropriate
  • Anything that they wish to add to shed light on their position

Usually the party taking action, the complainant, goes first. Both parties fully explain their positions, even if they become emotional. (Venting by the parties can be the first step in putting the dispute behind them and moving toward resolution.)

3. Joint Discussion

The mediator generally starts the joint discussion by summarizing the parties' opening statements. Clarifying questions are then asked of each party so the issues can be properly identified, and so the mediator is satisfied that he or she understands the issues. The mediator may allow or encourage the parties to ask questions of each other.

4. Caucus with the Parties

At some point in the discussion, the mediator typically breaks the parties into separate groups called caucuses. During this time, each group is in a different physical location. The mediator meets privately with each party. This step often lasts for several hours. Virtually everything discussed in the caucuses, unless it was previously disclosed, is confidential. The mediator does not reveal the information to the other party.

Caucuses and joint sessions may continue to alternate. At some point, the mediation process will come to a close.

5. Closure

Either the parties reach agreement, partial or full, or they do not. In most cases the mediation session will close with at least some issues resolved. Once an issue has a specific solution agreed to, it is reduced to writing by the mediator, then reviewed and signed by the parties.

The mediation should end when settlement no longer seems possible, i.e., there is no more movement by the parties on any of the issues, and the parties and all possibilities seem exhausted, or if one of the parties withdraws from the mediation. However, the door should always be left open for future meetings as the parties may be amenable to settlement after time has passed, and particularly after a hard look at their next options.

Is mediation for you?


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