As a qualified mediator with the Minnesota Supreme Court since 2004 and having conducted more than 2,500 mediations, facilitations, and negotiations, I have witnessed the mediation field evolve. I foresee more work in this area, with an increase in entrants into mediation as mediators, and a greater specialization within mediation. With this in mind, the commentary that follows presents the importance of mediation, mediation training, and mediation as a way of resolving differences.
What is mediation?
Mediation is a process in which a trained and qualified mediator works with parties to enable them to develop their own solution. The mediator is impartial. Mediation is confidential. Mediation allows the parties to be heard and develop solutions on their own. It allows for creativity, listening, and brainstorming. The parties make all of the decisions. The mediator facilitates listening and encourages the parties to share their perception of the facts, issues, feelings about the issues, and their interests. Every position has at least one interest, and interests are the seeds to a solution.
A skilled mediator collaborates with the parties to design a process that suits their needs. For example, there may be a session before the mediation in which the mediator meets with each party ahead of time to assess the suitability of mediation for their particular case. If the mediator assesses that mediation in this instance has the potential to be worthwhile, the mediator may proceed with the mediation. If not, the parties may be advised to proceed toward arbitration, litigation, or to agree to disagree and move on from there. The mediator may choose to shuttle between the parties or have them meet together in the same space. A mediation can be either virtual or in-person. Each situation requires a customized approach that is suited to the participants, as recommended by the mediator.
Types of mediation
Mediation may be transformative, facilitative, or evaluative. With transformative mediation, the goal is to transform relationships. This approach is often used in divorce mediation, where trust has been lost, and the mediator is primarily interested in restoring the relationship between the parties before addressing specific issues. Facilitative mediation focuses on addressing specific issues and concerns. The goal of facilitative mediation is for the parties to develop their solution by being heard, considering alternatives, assessing the impacts of those alternatives, evaluating those impacts, and working toward a mutually agreed-upon solution. Evaluative mediation is often presided over by a retired judge or an attorney who evaluates both sides and provides an opinion on what they think may happen before the case goes to court, as a way of initiating the mediation process.
What mediation is not
Mediation is not arbitration or litigation. In arbitration, the arbitrator listens to the parties, evaluates the facts, and makes a decision based on available information. Arbitration is less formal, quicker, and generally cheaper than litigation. Arbitration may or may not be confidential, depending on the parties, on state law, and on the issues. Litigation is conducted in court before a judge and, in many instances, a jury. This is the most costly alternative; it becomes a public record and is conducted in a formal, legal setting. The time leading up to the court date and the time spent in court can be very lengthy.
Why mediation?
Generally, mediation is less expensive, quicker, and confidential than either arbitration or litigation. The mediation process allows parties to be heard in an informal setting. In many instances, mediation preserves relationships because the parties have a chance to be heard in a setting conducive to resolving issues. It has been estimated from various sources that 90% to 95% of docketed cases never reach court. This excludes cases that never reached a docketed status in court. This means that disputes between parties are overwhelmingly resolved prior to a courtroom hearing. One of the reasons court dates are avoided is mediation.
It has been estimated that agreements are reached in 75% to 80% of mediations, and 10% to 15% of cases reach resolutions shortly after mediation by the parties. .
From a mediator’s perspective, a successful mediation is a mediation where the mediator has brought the parties together, where they have had a chance to be fully heard, where they have explored various alternatives, and where they have decided to either reach a solution they can live with, or terminate the mediation and move forward with something else (such as arbitration or litigation).
In the workplace, mediation enables parties to work together, be heard, and develop solutions that foster a more collaborative environment. Those who receive training in their area in the workplace often find that the skills they have learned help them in their career development. In the workplace, for example, a manager may decide conflicts between employees with the help of a mediator.
Demand for mediation
The public perceives successful mediation as an agreement that parties can live with. As a result, the demand for mediators is expected to outpace that of all other professions over the next decade[i]. It is estimated that the mediation field will grow 5% annually between in the next decade, outpacing many other professional fields. This growth rate demonstrates a growing general recognition that mediation is effective and efficient, and as a result the legal profession is increasingly endorsing this approach.
In fact, courts often push mediation between parties. Working in the field for over 30 years, I have witnessed meditation evolve from a practice offered by local not-for-profits to volunteers to a sanctioned process by the judiciary, with expanded training for practitioners and an area of study with increased coursework in law schools.
Courses are now offered in law schools, not-for-profit groups, and an ever-increasing array of practitioners that provide experts in their fields with training sanctioned by the state judiciary. It is a growing field.
Specialization in mediation
Transformative, facilitative, and evaluative mediation are specialized approaches and call for different sets of skills. Transformative techniques may be used in facilitative mediations. Courts may promote mediation on issues related to housing, conciliation court (small claims), harassment court, and family court, as examples. Specific issues related to employment, elder law, construction, and other specialty areas offer unique opportunities for those with specialty experience. Mediation in the workplace is a growing field. Many employers recognize the benefits of training employees in mediation or utilizing an outside mediator to assist with specific situations. Mediation is growing in popularity and acceptance because it brings results.
If you want to learn more about my publications on collaboration, conflict resolution, or enhancing your servant manager skills, which focus on leading by serving and understanding the needs of your team members, feel free to reach out.
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