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Mediate.com

Unpacking What Mediators Do

by Diane Cohen
September 2010 Diane Cohen
After being intensely involved in the field of mediation for 15 years, I am struck by the fact that mediators still can not reach a consensus on what mediators do so that potential participants can know what a mediator can or should be able to do before committing to the process.

I have given some thought to what I do when I mediate, and I believe that the following list of goals are the objectives that a mediator has or should have if parties want to work together with a mediator toward resolution of a dispute. I emphasize that some parties will not need the mediator’s help in some of these areas, and so those goals will not be utilized in such mediations. I want to be clear in saying that in my view a mediator should not impose his own goals upon the parties but should respectfully make them available for the parties’ use if the parties desire.

I also note that this is a starting point for discussion. I welcome further comment, suggestions and elaboration on the goals.

The following is a list of goals that I have developed for any mediator, regardless of style. Mediators who serve as neutral evaluators or have transformation as a separate goal, or who serve in another hybrid capacity, may have additional goals. I posit, however, that the following goals are, or should be, common to all mediators:

Most cases will involve many or all of these goals, but the parties may wish the mediator to limit the goals, either at the outset or as they go along. Any goal that is desired by only one party is not a goal of the mediation.

Techniques, such as looping, are ways in which mediators can accomplish the goals, but should not be confused with goals.

I. Mediation Process

  • The mediator and the parties should agree on what the mediation process will entail
  • The mediator and the parties should address any questions relating to the mediation, such as who will be attending the sessions, confidentiality and fees.

II. Intrapersonal goals (may be in caucus or in the main session):

  • Help each party think about their goals for the mediation and the dispute
  • Help each party think about the reasons for the positions he or she is taking on each of the issues.
  • Help each party consider his or her interactions with the other party.
  • Help each party consider how any proposed resolution will work.

III. Developing the issues:

  • Help the parties develop a list of issues to be addressed in the mediation.
  • Help the parties understand each of the issues in its clearest and simplest statement without losing the complexity of the matter and while maintaining a neutral phrasing.

IV Focusing the discussion:

  • Help the parties focus the discussion on one issue at a time
  • Help the parties avoid unproductive digressions that aren’t, in the minds of the parties, related to the issues to be addressed
  • Help the parties to focus on the goals, concerns, articulated needs, and perspectives of both parties.
  • Help parties to speak productively rather than unproductively.

V: Analyzing positions and issues: .

  • Help the parties articulate for one another the reasons for the positions they have on each of the issues
  • Help the parties analyze their reasons, logically, practically and personally

VI: Checking for understanding:

  • Make sure the parties and the mediator are understood by one another at all times, by checking for understanding and confirming understanding

VII: Working toward resolution:

  • Help the parties think of ideas on how to get ideas; on whether additional information is needed, on whether “experts” of any kind are needed; on whether additional time is needed.
  • Help the parties focus on how any resolution they are considering will work for them and any other affected individuals.
  • Help the parties consider whether they have the authority to bind themselves or to make the promises they are making in any agreement
  • Help the parties reconsider their agreement before signing it.
  • Help the parties to draft the agreement if they so desire.
  • Summarize the progress of the mediation after each session, if they so desire.
  • Help parties note their progress in the mediation without making them feel irrevocably bound by it until an agreement is written and signed.

VIII: Addressing participation of the parties in the mediation:

  • Help the parties recognize that the only way to resolve matters with one another in mediation is to listen to the perspectives of the other, articulate one’s own perspectives, and find a way to satisfy both.
  • Help the parties to avoid frustration with the process and one another; and to recognize that the process may take time, operate in fits and starts, and take an uneven path.
  • Help parties consider, either internally, or as a discussion in the mediation, whether they have any stumbling blocks to resolving the matter, which can be addressed by delaying the next meeting, delaying decision making, discussing issues unrelated to the issues to be decided, consulting another outside professional, or in some other way.
  • Recognize the various types of progress that can occur and convey it to the parties: agreement on the issues, greater understanding of the issues, better working relationship in the mediation room, etc.

Biography


Diane Cohen is a mediator in private practice and writes regularly on the process of mediation. Diane is an impasse mediator, and therefore mediates in all realms, but primarily in the family, divorce and workplace areas. Diane is a former co-president of the Family and Divorce Mediation Council of Greater New York. She has a J.D. from Columbia Law School, was certified as a community mediator by the Unified Court System in New York, and is a NYSDRA-certified mediator. She conducts workshops for mediators who want to work on their mediation skills.



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