Volume 1 • Issue 02
Posted by Site Staff on Monday March 3, 2008
Preparation, voluntariness and stages of mediation
Some mediators meet with each party prior to mediation to get an idea what the dispute is about; others prefer to know nothing prior to the mediation. There are mediators who immediately before a session spend time ridding themselves of thought in an attempt to be neutral.
No records are kept in mediation excepting for the final agreement signed by the parties. Should a mediator keep notes they will be destroyed after the process is completed. The physical setting of the mediation is important. Some mediators use a round table with
The idea of seating each party equidistant on either side. It is thought that a square or rectangular table can lead to parties being face to face. This can lead to stare direct confrontation which
in mediation is not good(mediation is not a contest).This writer believes that a round table is best for this process. Mediation can take place anywhere as long as there is privacy and a secluded
area away from the session for caucus(a private meeting between the mediator and one party). No party should be uncomfortable. The mediation session should be non-threatening and quiet. If
there are more than two parties adequate space and physical necessities must be provided. No party should be left to feel another gained preferential treatment, power or control as a result
of seating arrangements. Mediation is a non-adversarial process and must be kept that way. In a caucus the mediator removes one of the parties to the caucus room or secluded area for
discussion; power control and equal opportunity must remain intact. Mediators upon bringing the party back to mediation should take the remaining party into caucus to balance out any color
of impropriety or power issue and should keep the second party in caucus the same amount of time; anything can here be discussed.
Caucuses are confidential. A mediator will not divulge what was discussed in the caucus unless directed by the party involved.
Caucus is a tool utilized by the mediator to clear up misunderstandings, emotional outbreaks, a party not communicating or any reason the mediator believes a party needs to be privately advised of a specific problem or matter. A private “heart to heart talk between the mediator and a party can clear up questions or complaints
A VOLUNTARY PROCESS
Parties in mediation must be involved by their own accord. Willingness to in good faith be part of the process is of the utmost importance. If one is hesitant or feels pushed into mediation their
will be a negative effect. An experienced mediator will detect feelings of this nature and take steps to correct same. The mediator’s opening statement can clear up matters like this or
caucus can be used. If a party earnestly believes he/she cannot proceed in good conscience then the session should be terminated (when the mediator sees or can tell this has occurred).
An added feature to voluntariness are court ordered mediations such as in domestic courts. Problems here are myriad. Loaded dockets, over worked court mediators, muscle mediation (when a
mediator intervenes, pushing the parties to resolution), parties coming to the mediation not willingly but through court order to avoid a contempt charge or judge who would be angry at a “no
show”. Court ordered mediations are fit into a time slot with mediators under the gun to meet closure quotas. Unfortunately this form of mediation may well fall into the Roscoe Pound theory
Of “The Causes of Dissatisfaction of the Administration of Justice”, escapelitigation, vol.# 1,issue # 1,Feb., 2008.
The object of all of this is to be as certain as possible the process is fair and the parties understand the stages of same.
STAGES of MEDIATION
Opening Statement—mediator covers the following
The mediator is a guide through the stages of mediation; there will be no judging or telling parties what to do with regard to substance in the dispute; all decisions are the parties. The mediator will not sway any party to accept or reject a position. Upon reaching a resolution or agreement it should be as though there mediator was not there excepting for guidance. The process is one of fairness and equality. Parties must remain on the same playing field at all times.
Mediation is confidential. Records will not be kept excepting for a signed agreement. At the end of a session(resolution) all records will be destroyed. It is imperative there be no arguing between the parties. Swearing, power moves or leveraging will not be tolerated. Confidentiality does not apply where there is information or indication of child abuse or should a party indicate in a serious manner that they have the present ability and
intention of committing a crime; in these situations the mediator must contact the proper authorities. A caucus may be utilized to discuss any matter the mediator deems necessary with
regard to issues or process; this will be accomplished with one party taken out of the session to a secluded, area preferably a separate room. Caucus is confidential. What is discussed will not be divulged unless the caucused party allows same. The mediator emphasizes the he/she is a neutral not taking any position in decision making (the newsletter does not condone the use of the term neutral as its’ definition Is amorphous).The main point is that in the opening statement the mediator makes it
clear that he/ she will not take positions on issues, ideas or options. Parties create options through being fully involved in each stage during meaningful discussions. Coercion, leveraging power plays, guilt trips or manipulation will not be allowed by either
party; the mediator makes it clear that this will not be permitted.
The mediator advises the parties that when agreement has been reached same will be committed to writing and if the writing is agreeable then the parties sign same. Some
jurisdictions require mediators to certify that the agreement is voluntary, fair ,the agreement of the parties and the mediator believes same to be proper ,accurate and in the best
interests of the parties.
Parties Opening Statements
In this stage each party states what the dispute is, what the party expects of mediation, and why the matter ended up in mediation(in their opinion). In this stage the mediator must keep the parties calm and be on the lookout for outpourings of emotion, anger and frustrations. Caucus can be used for venting and
the mediator’s maintaining control and stability. After the parties and mediator are satisfied they have given full statements the next stage is moved into.
BRAINSTORMING
The mediator requests that parties enter into an open discussion wherein they utilize every thought, idea, term or phrase applicable to their dispute. The mediator encourages a full open, free discussion. Sufficient time must be afforded in this stage to bring out everything possible.
NEEDS,INTERESTS,GOALS
The mediator requests each party to list their needs, interests and goals regarding the dispute. Prioritizing is not required here just a full ,frank list without unnecessary frills not related to the dispute.
OPTIONS CREATING
At this point the mediator satisfied the parties have exhausted and fulfilled the above stages moves parties into a discussion of options to resolve the dispute. In this stage the parties should be asked to place themselves in the other parties shoes
to obtain the other parties view. When the mediator is satisfied all options have been fully explored and the parties followed through in the exercise of placing themselves in the other’s shoes they are prepared for the next stage.
OPTIONS NARROWING
A period of discussion with regard to give and take is begun.
Parties are guided to prioritize by looking at and considering not only what is most important but also what is least important. This is to be accomplished by looking at needs, interests,
goals eliminating those not necessary( looking at the future and what is required for satisfaction. Some needs and interests may take a back seat to an overall desire to have an agreement).One should consider the desire to keep relationships and not burn bridges with the other party(s). Each party may not be able to get one hundred percent of what they desire but enough or more than enough to be satisfied. In this stage parties are encouraged to look for the option which best satisfies their overall needs to reach agreement.
CONCLUSION
At this point should the parties desire a formal document can be developed. The agreement prepared by the mediator and upon final agreement by the parties, they sign same.
The mediator depending upon the custom or rules of the jurisdiction certifies the document as the
Final, full and accurate agreement of the parties. There are jurisdictions requiring mediators to certify that
they are in agreement. The agreement can be used simply as a contract or recorded in a court of law to gain Enforceability upon default. Depending on who a person is speaking to or which author one is reading stages will vary. This newsletter maintains there are the following stages:
- OPENING STATEMENT—MEDIATOR
- OPENING STATEMENTS—PARTIES
- BRAINSTORMING
- NEEDS,INTERESTS,GOALS discussion
- OPTIONS CREATION
- OPTIONS NARROWING and ELIMINATION
- AGREEMENT
- CONCLUSION-FORMAL WRITTEN AGREEMENT
As discussed, important in each stage is open communications, placing parties in the shoes of the other, give and take with the understanding that parties may not gain everything they want, or one hundred Per cent of their quest.
PLEASE COME BACK,CHECK OUR ONGOING SUPPLEMENTS AND THE APRIL, 2008 NEWSLETTER. THE DISCUSSION ON MEDIATION WILL CONTINUE AND INCLUDE DIFFERENT TYPES OF MEDIATION PLUS RECOMMENDATIONS ON WHEN MEDIATION IS ADVISABLE OR NOT.DISCUSSION ON POWER AND NEUTRALITY WILL ALSO BE PRESENTED.
