When negotiators can’t come to agreement but want to avoid an expensive, time-consuming, and potentially rancorous lawsuit, mediation is often their most logical choice. Mediation can help to resolve a wide range of disputes. A divorcing couple that can’t reach agreement on child custody might try mediation. So might siblings who disagree about issues related to an inheritance, or companies that are fighting over a failed venture. Sometimes courts require litigants to engage in court-sponsored mediation with the goal of heading off a trial.
In mediation, a trained mediator assists disputants in working together to craft a resolution that each side values. Mediators encourage parties to share information about their positions and explore innovative means of coming together. Here, we overview the potential benefits of mediation, how to hire a mediator, and what happens at mediation.
Potential benefits of mediation
In her chapter, “Mediation,” in The Handbook of Dispute Resolution (Jossey-Bass, 2005), professional mediator Kimberlee K. Kovach outlines the following potential benefits of mediation:
- Mediation is usually a less expensive, faster means of resolving disputes than arbitration or litigation. Reducing the amount of time and money you devote to a dispute can ease conflict and build a better relationship.
- Mediation gives disputants a private, controlled forum in which to express their emotions and points of view. Under the guidance of a mediator, parties often develop more creative, novel solutions than an outsider, such as a judge, would reach for them.
- In mediation, the parties involved—not the mediator—determine their fate. Rather than one side emerging as the “winner” and the other as the “loser” (as in a lawsuit), parties try to reach an agreement that pleases both. The collaborative nature of mediation increases the likelihood that both sides will comply with any agreement that emerges.
How to hire a mediator
To find a good mediator, check with your organization’s legal department or search for dispute-resolution providers on the Internet. Contact the mediator’s most recent clients, and ask whether the mediator was friendly and engaging, demonstrated high integrity, and was well prepared and organized throughout the process. To avoid any hint of bias, both sides need to agree jointly on which mediator to choose. Mediators generally charge by the hour, and parties split the cost of mediation between them.
What happens at mediation
Mediation can include some or all of the following six steps, according to Kovach:
1. Planning. Before mediation begins, the mediator helps the parties decide where they should meet and who should be present. Each side might have lawyers, coworkers, and/or family members on their team, depending on the context.
2. Mediator’s introduction. With the parties gathered together in the same room, the mediator introduces the participants, outlines the mediation process and goals, and lays out ground rules.
3. Opening remarks. Following the mediator’s introduction, each side has the opportunity to pre¬sent its view of the dispute without interruption. In addition to describing the issues they believe are at stake, they may also take time to vent their feelings.
4. Joint discussion. After each side presents its opening remarks, the mediator and the disputants are free to ask questions with the goal of arriving at a better understanding of each party’s needs and concerns. Because disputing sides often have difficulty listening to each other, mediators act like translators, repeating back what they have heard and asking for clarification when necessary. If parties reach an impasse, mediators diagnose the obstacles that lie in their path and work to get the discussion back on track.
5. Caucuses. If emotions run high during a joint session, the mediator might split the two sides into separate rooms for private meetings, or caucuses. Often, but not always, the mediator tells each side that the information they share in caucus will remain confidential. The promise of confidentiality can encourage disputants to share new information about their interests and concerns.
6. Negotiation. At this point, it’s time to begin formulating ideas and proposals that meet each party’s core interests—familiar ground for any experienced negotiator. The mediator can lead the negotiation with all parties in the same room, or she can engage in “shuttle diplomacy,” moving back and forth between the teams, gathering ideas, proposals, and counterproposals.
When putting together your settlement proposal, ask your mediator for her advice. Her conversations with the other side have probably given her knowledge of its interests that you can use when packaging your proposal.
Depending on the complexity of the issues, mediation might last mere hours, or it could take days, weeks, or months to resolve. Some resolutions will truly be “win-win”; others will be just barely acceptable to one or both sides—but better than the prospect of a continued fight or court battle. If the parties come to consensus, the mediator will outline the terms and may write up a draft agreement. If you fail to reach agreement, the mediator will sum up where you have left off and may engage you in a discussion of your non-settlement alternatives.
Great article, it also sums up the roll of a skilled negotiator negotiating with an unskilled negotiator. We liken it to the Tango where one leads and the other follows. Not to walk over them, but to lead them to a value value outcome. Just with two clients in this instance. My concern is the lawyers, if they stay in the room often the negotiation will go off track. I prefer to call them in at the end if at all possible, just to draw up the agreement.