Principles of Facilitative Mediation
It has been said that most of life's problems have a simple and elegant solution. I believe that this saying is true and that mediation is very often the elegant, although frequently stressful, solution to conflicts ranging from noisy neighbor disputes to complex medical malpractice disputes.
While mediation does not always work and is not always appropriate, it almost always is a no-risk, quick and economical tool to settle disputes. Indeed, approximately 80% of all cases that are voluntarily mediated are resolved by this process. In some senses, mediation is the opposite of litigation. In litigation the goal is generally to intimidate the other party into settling the case, but mediation persuades the parties to settle. The only requirements for successful mediation are a skillful mediator and parties who are able to discuss the strengths and weaknesses of their respective positions with civility and objectivity and who are willing to candidly discuss their interests directly with the other party. Attorneys who understand the often counter-intuitive mediation process are normally quite helpful in mediating litigated cases. The key to understanding mediation is realizing that the party never looses control of their position to the court, their attorney or the mediator. Only a settlement that is fully acceptable to a party can ever be established. And because the settlement is not imposed upon the party by someone else, the party always leaves the dispute with a feeling of autonomy and fairness. While litigation is often destructive, mediation is always constructive. And while litigation is often very costly in both time and money, mediation is always brief and inexpensive. Mediation allows all parties to completely eliminate the risk of a totally unacceptable outcome being imposed on them by a court. It also eliminates the very high, and often underappreciated, emotional cost which litigation imposes on all participants. Mediation also always turns off the “meter” of litigation costs, attorney fees and lost productivity.
The actual process of mediation is simple and transparent. The disputing parties, and there may be more than two, agree on the selection of a competent mediator who is experienced in the process of inter-personal facilitative-mediation. Prior experience in the subject matter of the dispute is not a requirement inasmuch as the mediator will not have to decide any substantive issues. Insight into the actual workings of the judicial system, however, is very desirable in a mediator. But, absolute neutrality, patience, and the ability to preserve confidences are requirements for any mediator. A mediator will set a mutually agreeable time and place for the mediation and assure that all persons necessary for resolution of the dispute will be present in an informal and private setting.
My mediations begin after an introduction of all the attending parties and their legal counsel. I explain the mediation process to all the participants and offer “tips” on successful dispute resolution. Then each party will normally personally set forth their understanding of the dispute and their attorneys will clarify any points than need be mentioned. I then begin to question each side as to their understanding as to the relevant facts and law. I establish which points the parties agree upon and which points are in dispute. I then explore why there is a disagreement on these points and look for mutually acceptable means of resolving such disagreement. I proceed to frame up the key issues and the parties begin the process of direct dialogue in which parties convey their situation and needs and attempt to understand the position and needs of the other parties. I endeavor to uncover the real interests of the parties and to keep the mediation process focused and moving forward. I function to deflect anger and emotionalism so as to allow the parties to focus on demonstrable facts and realistic assessment of their risk and benefit calculation. If the process bogs down, as often happens, I caucus with the parties separately. In the privacy of the caucus a party will be presented with possible problems and potential solutions in a totally non-threatening and entirely confidential environment.
Once the parties become fully involved in the process and are able to agree upon a solution to the dispute, I assist them to work out the details necessary to implement it and make sure that all parties understand and agree with the solution after review by their legal counsel. Finally I assist the parties and counsel in drafting the written settlement agreement which will furnish the basis for a consent judgment in litigated cases.
All information and offers exchanged during mediation are stipulated to be completely confidential. In the somewhat unlikely event that no agreement is reached, the parties are able to commence or continue litigation or other dispute resolution processes.
I am normally paid by each party on an hourly basis. Most disputes, including many complex disputes in which a large amount of money is involved, are resolved in one day or less. I do not normally require written submissions but usually speak briefly to each side before the mediation. I leave it up to the parties as to whether or not they desire the mediator to meet with each side prior to the actual mediation itself.
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The obscure we see eventually. The completely apparent takes longer.
Edward R. Murrow