Mediators often assist participants to identify guidelines or ground rules to help support productive communications. Here are some sample mediation ground rules participants may want to consider adopting.
Gentle reminders from the mediator. e.g., “Didn’t you guys agree to not interrupt?” are usually sufficient to stay on track.
In the event that discussions are problematic, the mediator can also do a more generalized “relevancy check,” asking, “how is this discussion taking us where we want to go . . . as, if it is not, perhaps we can make new progress by . . .” The “relevancy check” is a transition technique between that which is not working and that which might work.
Here are sample suggested ground rules for mediation participants:
1. We agree to take turns speaking and to try to not interrupt each other.
2. We agree to call each other by our first names, not “he” or “she” or worse.
3. We will ask questions of each other for the purposes of gaining clarity and understanding and not as attacks.
4. We agree to try to avoid establishing hard positions and express ourselves in terms of our needs and desires and the outcomes that we wish to create.
5. We agree to listen respectfully and sincerely try to understand the other’s needs and interests.
6. We recognize that, even if we do not agree with it, each of us is entitled to our own perspective.
7. We will seek to avoid dwelling on things that did not work in the past, and instead focus on the future we want to create.
8. We agree to make a conscious, sincere effort to refrain from unproductive arguing, venting, and narration and agree to use our time in mediation to work toward what we perceive to be our most constructive agreement possible.
9. We will speak up if something is not working for us in the mediation.
10. We will request a break if helpful.
11. While in mediation, we will refrain from furthering adversarial legal proceedings, except in the case of an emergency necessitating such action.
12. We will point out if we feel the mediator is not impartial as to person and neutral as to result.
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James Coben describes two sets of risks in training collaborative lawyers - coerciveness and becoming too collaborative, which may end up harming the client by being too costly.By James Coben