When humans interact on a conflict it does not mean there have to be negative consequences. Disputes, conflicts, or disagreements can be addressed in a number of ways, but sometimes a third party mediator may help the parties look at the situation differently allowing the parties to actually grow as part of the process. A trained mediator familiar with the area in question can often cut to the chase and help de-escalate the situation to focus on the substantive issues.

In previous posts the various alternative forms of mediation were introduced (evaluative, facilitative, transformative) including with an application to family businesses. What these demonstrate is that mediation can play a vital role in addressing these types of disputes.

The mediator

The mediator should be a trained mediator with extensive experience in mediation and with the issue being presented. The mediator needs to be a true neutral third party. This takes practice to suspend judgment and not to offer advice. Someone new to this process may find this extremely difficult.

The process is confidential (unlike court) allowing the parties greater comfort in presenting

not only facts, but also feelings relative to the facts associated with the issues. When facts, issues, and emotions related to the issues have been addressed it is often possible to identify the interests of the parties. The mediator helps the parties see the interests of each side, asks open ended questions, and helps the parties develop a solution that all parties can live with going forward.

Your mediator is key. The experience of the mediator really matters.

It is a good idea to reach out to others, obtain references, review their web site, published articles, books, and other areas demonstrating competence. It is a good idea to interview the mediator to ensure that the mediator is indeed neutral. A close relationship with one or both parties needs to be disclosed and is often a valid reason not to select that mediator. Trust is key. 

Mediation 

The two biggest advantages of mediation are that the process saves substantial costs and allows for closure. By avoiding costly litigation and appeals substantial time is saved. Since the process is confidential mediation is often entered into at the same time as litigation in a parallel tact to allow the parties to address elements that may not be allowed in a legal setting.

The mediator will work with the parties to ensure ample time for the mediation.

More than enough time should be set aside for the mediation process. Often underlying elements loom large as part of the underlying conflict. In mediation the parties can actually be heard. This in itself can be a major game changer.

When should you enter mediation?

This is an important question. Mediation works best when the facts are already clear. True that each party may have significantly different view of the facts but being able to identify what both parties believe to be the facts goes a long way towards working the issue.

The mediator can help the parties to determine what facts they each agree to or can live with as part of the process.

The mediator needs to have excellent emotional, listening, and conversational intelligences. Creativity and stamina are needed in what are often difficult situations. When you have identified and agreed upon a mediator it is important that the mediator interview both sides, listen, develop trust, and then bring the parties together for the actual mediation.

Process

Up front the mediator will ask the parties to be truthful and honest. No one is sworn in as with court. However,

developing a rapport with the parties is critical for having candid discussions and promoting a truthful understanding of the parties.

The mediator will address the process whether in person or virtual, whether all are in the same room (physical or virtual) or whether the parties may be in separate rooms with the mediator shuffling back and forth between the parties. Generally, the parties start with everyone in the same room agreeing to the process as presented by the mediator ahead of time. In the case of a virtual session additional time is spent to go over additional rules associated with the technology, unintended interruptions, fall back technology options, and other concerns.

The decision makers need to be there to decide.

A time frame is set up for the mediation, but this may change if mutually agreed to by the parties. I have seen other authors state that multiple iterations are not as successful. My own experience with multiple sessions in virtual mediations have allowed the parties to reflect and better prepare for multiple sessions. Clients and attorneys have affirmed to me that they believe better settlements take place with this type of environment.

In terms of cost the mediator is paid after every session. Often both parties split the bill, but in some instances one party pays the fee. For example, in a business valuation associated with a divorce often the in-spouse (the one who owns the business) pays the fee and the out-spouse (often not working outside of the home) does not pay the fee. Regardless of who pays the fee. The mediator is neutral. A retainer is generally applied up front to more than cover the costs.

The mediator cannot be brought forward to discuss what took place in mediation in any subsequent proceedings. All states have adopted these rules.

Closure

If the parties reach an agreement this is documented in a written agreement and signed by the parties. This written agreement may be further finalized later upon a review by attorneys to meet local legal requirements. The agreement should address all of the issues associated with the dispute.