Sy Landau
(With inspiration from Marje Burdine and Barbara Landau)
Reprinted with permission from Canadian Bar Association
Alternative Dispute Resolution
SECTION NEWS, Vol.5, No. 3 – March 1997

Understand the Mediation Process

Mediation is a process that brings together disputing parties so that they can resolve their differences in a collaborative, non-adversarial way. This is particularly helpful where the parties intend to have a continuing relationship.

A mediator – an impartial "third party" who has no personal stake in the outcome, facilitates the process. Unlike a judge or an arbitrator, the mediator does not make any rulings or decisions about the resolution of the issues. The parties have full control over the agreement reached.

In some mediations, one or more of the parties may bring a support person to the mediation. This person is available to provide advice during breaks in the meetings or between sessions; however, the support person is not a party to the mediation and should not take part in the discussions.

Consider your objectives.

Your objective in mediation should be to arrive at a "better" solution than you could achieve through other dispute resolution processes.

"Better" might mean that you get more of what you want, but it might also include meeting other important interests, such as maintaining a better relationship with the other party, resolving the issue more quickly, resolving the issue at lower cost, increasing the likelihood that the other party will voluntarily comply with the agreement, and any other factors that are important to you.

In order for most of these interests to be met, the other party will need to feel that he or she has met important needs, too.

Do not try to convince the mediator.

The mediator is an unbiased person who helps the parties resolve their dispute. Unlike a judge or an arbitrator, the mediator does not hand down a decision. The parties must reach a voluntary agreement, or the mediation process is over and people move on to some other dispute resolution process.

During the mediation, you should try to communicate directly with the other party, rather than try to convince the mediator of the rightness of your cause.

Think about your interests.

When people enter a dispute resolution process, they usually take a "position" that reflects their preferred resolution of the issues. The positions of the parties are almost always different, or there would not be a dispute. If people stick to their positions, mediation is unlikely to succeed, and they will end up before a judge or arbitrator who will render a judgment based on these positions.

The position you have taken on an issue is usually based on a package of "interests": that is, needs or concerns that you want to be taken care of in any agreement. Your position is what you want; your interests are why you want it.

Even when the party’s positions are far apart, they may have many mutual or non-competing interests. In mediation, we try to fashion an agreement that meets many of the interests of the parties.

In preparation for mediation, you should try to understand your own interests: What are the needs that must be taken into account in an agreement? What are you concerned about if you do not get these needs met?

Listen carefully to the other party.

Remember that in mediation, the parties must fashion an agreement that both will sign and both will adhere to. Neither party will sign an agreement that does not address at least some of their important interests. You must listen carefully when the other person is speaking, so that you can really understand their needs and concerns. You should ask questions to help you understand.

The other person will listen more carefully to you if it is obvious that you listened to him or her. That means your questions, observations and body language should show that you are listening.

Be firm, clear and respectful when you speak.

Just as you must understand the other person’s interests, you must have your needs and concerns heard and understood. This will be most likely if you explain your needs and concerns in a firm, unambiguous and respectful way. Try to avoid negative language, accusations or personal attacks; these discourage the other person from listening to you and this works against your interests and against the success of the process.

Be flexible in considering solutions.

In mediation, it is rare for the final agreement to look like either party’s initial position. Remember, you want an agreement that meets your interests; so does the other party. It should not matter whether it was your "pet solution", as long as your interests are largely met. The question you should ask yourself is "Am I prepared to live with this agreement and to make it work?"

When generating options, do not reject any options until you have time to really consider them. Some options that sound unacceptable on their own could become part of a workable solution.

Consider your alternatives.

Before you enter mediation, you should think about what alternative process you might be in if mediation fails. Is it arbitration, litigation, or some other approach? How do you feel about being in that process? How do you feel about that?

Your objective in mediation is to do better than in the probably alternative process. Even if you do not get all your needs met in mediation, would they be met in the other process?

Keep this in mind during the entire mediation process, if you are tempted to withdraw or if your approach appears to be driving the other party to withdraw.

Be prepared to settle.

The people taking part in the mediation should have the authority to accept an agreement. If some other approval process is needed, that should be divulged at the beginning of the process, because it could create frustration and ill-will if it comes out at the end of the process.

To the fullest possible extent, parties should seek external advice or information before starting the mediation process so that they are clear about the issues to be discussed, the usual range of solutions, and their options if mediation fails. They may also seek advice between meetings.

If a party plans to show the mediation agreement to a lawyer before signing it, which is a perfectly valid thing to do, it would be helpful to keep the lawyer informed about the progress throughout the process.

Mediation is a very useful process for resolving difficult disputes, especially where the parties intend to have a continuing relationship. With the cooperation of all parties, your mediation can be a success.

Sy Landau is President of Organizational Strategies Group, a management consulting firm specializing in organizational effectiveness. Mr. Landau has led seminars on Dispute Resolution. He is a member of the Employment Section of the Arbitration and Mediation Institute of Ontario and a Roster Mediator, Ontario Mandatory Mediation Program - Toronto. Mr. Landau can be reached at 416-391-1088 or visit his web site at http://www.orgstrat.ca/


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