Mediation is an Opportunity
As a mediator and teacher of mediation for many years, I am sometimes asked,
“What is Mediation?”
My standard definition of mediation is four words:
Neutral Facilitated Negotiation with a goal of Resolution. The parties or disputants are at the mediation to negotiate a resolution to their dispute. The disputants’ task is to negotiate, and their goal is to reach a resolution. If they did not think that they could reach a resolution, they would not spend the time and energy to prepare for and attend the mediation. But what makes a mediation different from other negotiations is the presence of a mediator. The mediator is there to facilitate the parties’ negotiation; to help the parties clarify their needs and interests, and then express the needs and interests clearly and productively to the other side. To help the parties in this negotiation, the mediator needs to be seen as neutral by the parties. If a party does not think the mediator is neutral, then that party will not be open and honest about his needs and interests. Without the trust of the parties, the mediator’s ability to help will be very limited. A party will not share, even in private caucus, what he really wants, for fear that the “not-neutral” mediator will use the information against him or, even worse, share it with the other party. A mediator’s job is to facilitate the parties’ negotiation. To do that, the mediator must be neutral.
How Does the Mediator Facilitate the Parties’ Negotiation?
Mediation trainers and writers explain the mediation process by describing the stages. Not everyone uses the exact same stage names, but the process is basically the same in all instances.
- Acquire Information
- Define Issues
- Generate Options
- Evaluate Options
Mediators begin by introducing the various parties and participants (advisors, attorneys, insurance representatives, etc.) to make sure everyone knows who is present and their roles related to the dispute. The mediator then describes mediation, so everyone first understands the process and then agrees to participate. Next the mediator finds out about the problem and the issues by asking questions. The mediator lets the parties talk about the situation. The mediator asks for clarification and explores for further information. Understanding the situation, the mediator helps the parties develop a list of issues that need to be dealt with to resolve the conflict. As those issues are discussed, the mediator begins to focus the parties on the future – inquiring what they can do that will resolve the matter, rather than focusing on fixing blame for what happened in the past. The parties suggest possible options, then analyze those options to determine which ones will work and which ones are not practical. Out of this discussion, hopefully, a resolution develops. This process sounds very linear, first step 1, then 2, then 3 and so on to a resolution or impasse. But frequently, in reality, there is lots of circling back. While defining the issues, new information may arise that requires exploration and adding other issues. Or during the evaluating options stage, the scope may have expanded, once again requiring more information and raising new issues to discuss. Often, mediation is a very fluid process, going wherever the parties need to go in order to resolve all of their issues.
But mediation is more that the definition and process or stages.
Mediation is an Opportunity.
Before mediation, the parties have tried to resolve the problem by negotiating on their own, or maybe with assistance, such as with an attorney. Many problems are resolved by the direct negotiation of the parties or their counselors. But for whatever reason, the conflicts that wind up in mediation are not resolved through negotiation. Usually the failure is related to communication problems. The parties are not able to talk plainly and directly with each other. Emotions, past conflicts, biases or social pressures get in the way and keep people from being able to speak clearly and calmly, as well as being able to listen deeply and carefully. Conversations are not information exchanges but become battlegrounds, where each side is more intent on gaining advantage than in understanding. Sometimes it is because they view the situation though different lenses, seeing the same facts in different ways. Because every conversation turns into a fight, they are not able to take the time to pause, reflect deeply on the situation and develop thoughtful responses. Instead they give emotional, reflexive reactions.
After mediation, if the problem is not resolved, usually the next step is to go to court. If the parties cannot solve the matter on their own, a court will decide it for them. While modern courts are wonderful places that work hard to preserve our civilized society, they have limitations.
First, taking a case to court deprives the parties of their decision-making power. The judge will decide for the parties how the case should be resolved. However, as humans, we prefer to make our own decisions. Once in court, the judge will tell the parties what to do and they will have to go home and like it. They have no say in the matter any more. In some situations, when life moves forward and circumstances change, they may still be stuck with the judge’s order, not able to change it and mold it to suit their new reality. To change, they must go back to court and ask permission to handle things differently, which is a much more complicated process than the parties sitting down over tea and talking things out.
Second, courts are bound by rules and have limited flexibility. In mediation, the parties can tell their story any way they want. In court they must follow the rules of evidence. The solutions the parties can negotiate on their own are limited only by their imaginations. In court, the judge must apply the law, which is written by the legislature and applies equally to all people. The drawback is that your problem or my problem is not like everyone else’s problem and so a one-size-fits-all solution may not fit you or me very well at all. But that is the only solution the judge can apply. Money cannot solve all problems, but in many cases all the judge can do is order someone to pay a certain amount of money. By going to court, the parties have lost control over their own case and how to solve it, thus lost control of a part of their lives. They also lose the flexibility to craft and develop their own solution to their own problem that suits their own lives and relationships.
Mediation is an opportunity, a unique opportunity in the life of a dispute. Before mediation the parties were free to talk and negotiate, but those negotiations devolved into emotional, unproductive arguments. After mediation, someone else will make all the decisions for the parties. In mediation, a skilled, trained mediator is there to help the parties explore, privately and jointly, the issues, their needs, their interests. The mediator facilitates their communication and keeps the discussion on track and moving in a positive direction. The parties retain control over the outcome of their problem, since in mediation there is no resolution unless both parties voluntarily agree to it. Through the mediation process they can shape the resolution in any way they want. Maybe it is just money, but it can include apologies, steps to fix the situation or repair the relationship. After thoughtful discussion, the resolution becomes what they want it to be. An opportunity they cannot get outside of mediation.
Questions and comments are welcome at firstname.lastname@example.org
Frank C. Laney is Circuit Mediator for the US Court of Appeals for the Fourth Circuit, chair of the State Judicial Council Dispute Resolution Committee and is an ex-officio member of the NC Dispute Resolution Commission. He is the former Mediation Coordinator for the NC Industrial Commission, a former partner in Mediation Inc. and for three years limited his private practice in Raleigh to mediation. He has been a member of the NC Bar Association Dispute Resolution Committee/Section since its inception, and was a consultant with the NCBA’s Mediated Settlement Conference Pilot Program. Mr. Laney is certified as a Superior Court and Family Financial mediator by the NC Dispute Resolution Commission and was a practitioner member of the Academy of Family Mediators.