Lawyers in Mediation and the Mediation Process

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How does the presence of outsiders affect mediation and the mediation process? Negotiation research has shown that when negotiators bring lawyers to the bargaining table, the bargaining process and the mediation itself becomes a contest of wills and a meeting of antagonistic counterparts. 

However, negotiation research from Jean Poitras of HEC Montreal; Arnaud Stimec of the Université de Nantes, France; and Jean-François Roberge of the Université de Sherbrooke in Canada contradicts this common assumption (for more information, read also: The Mediation Process and the Impact of Lawyers of Mediations).

In this negotiation research study focusing on conflict management in workplace disputes, mediation sessions featuring attorneys successfully reach a negotiated agreement just as often as those without attorneys present. Additionally, the mediation process was not hindered by lawyers nor were perceptions of fairness in the negotiations affected.


Discover how to improve your dispute resolution skills in this free report, Dispute Resolution, Working Together Toward Conflict Resolution on the Job and at Home, from Harvard Law School.


Whether mediating with lawyers at the bargaining table or other third parties, some common features of the mediation process still apply when setting the negotiation table (for more information, see also How Does Mediation Work).

Here are the six steps of the mediation process according to The Handbook of Dispute Resolution (Jossey-Bass, 2005):

1. Planning a mediation session. Where to meet and who should be at the bargaining table are among the issues addressed at this stage in the mediation process.

2. Starting a Mediation. The mediator introduces the counterparts and gives a general overview of the mediation process, establishing rules and norms of discussion as well as stating the aim of the mediation session.

3. Opening remarks. Each side has a chance to present her story to the mediator.

4. Establishing dialogue. At this stage the mediator seeks to establishing understanding and a dialogue between the counterparts, working towards acceptable solutions or even potential negotiated agreements.

5. Caucuses. If dialogue between the counterparts is difficult the mediator may take each side into private caucuses to discuss matters in privacy and in confidence.

6. Negotiations. The process of arriving at a mutually beneficial negotiated agreement that seeks to resolve each side’s issues while maintaining a relationship. During this stage proposals and counter-proposals may be offered and bargaining between counterparts and their agents begins.


Discover how to improve your dispute resolution skills in this free report, Dispute Resolution, Working Together Toward Conflict Resolution on the Job and at Home, from Harvard Law School.


 

 

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