Mediation: Nuts and Bolts

Conflict is inevitable.  Disputes arise with our neighbors, on our Boards or committees, and within our business and family relationships all the time. There is no shame in having a disagreement that rises to the level of a very serious dispute. The only shame is in not knowing you have many options for resolving the dispute, and one of those options is mediation.

What is Mediation?

Mediation is the use of a neutral third party who assists the parties in resolving a dispute.  A good mediator helps the parties communicate, assists them in focusing on the real issues at stake, and helps them generate options for meeting the interests and needs of the parties.   In a successful mediation, the parties negotiate an agreement that puts the dispute to rest.  

Mediation is NOT:

-          Arbitration

-          A sign of weakness

-          An automatic agreement to “split the difference”

In arbitration, the arbitrator renders a binding decision.  By contrast, a mediator helps the parties look at the risks associated with their position and assists in brainstorming ways in which the dispute can be resolved.  As a result, some parties report a higher level of satisfaction in mediation because they had a role in the outcome.

Some parties (or their attorneys) worry that if they suggest mediation they will look weak.  In fact, a willingness to mediate signals confidence. It says: I believe in my position, I am comfortable communicating the interests that are behind my stance, I am so comfortable I am willing to hear what you have to say! Moreover, it suggests your motives are pure: you are not intending to “destroy” the other side with litigation and attorney’s fees; you are seriously looking for solutions. Finally, mediations are not processed with a goal of “splitting the difference” or ending up “somewhere in the middle.” The solution depends on where the parties were to begin with and the various interests and possibilities available.

How Is a Mediation Conducted?

Mediations are conducted many different ways, depending on the number of parties and their sophistication, whether or not attorneys are involved, and the complexity of the dispute.  However, many mediations are organized by bringing the various parties together for a day or an afternoon and putting each party in a separate room. The mediator then performs a sort of “shuttle diplomacy” going between the rooms to see if the parties can agree on an agenda, identify and reframe issues, start to communicate more effectively, find common ground, and hopefully, reach agreement. 

The mediator can help the parties really focus on the facts (rather than some perceived insult), show empathy, and use persuasion to get people to soften hardline positions and reflect actual interests. Sometimes the mediation includes joint sessions: where all the sides are working together in one room. The structure of the mediation depends on many things, including who is involved and the depth of animosity between the groups.

What is the Product of Mediation?

In most successful mediations the parties sign an agreement. Sometimes the agreement is more like a “deal sheet” and the attorneys will draft more detailed documents later, but the settlement memorandum is still generally a binding document.   Even when the parties can’t settle, they can make progress: they can agree to narrow the issues, they can agree on an expedited process such as arbitration, or they can agree to split the costs of an accountant or other professional to help them resolve the key issue in a dispute, and to be bound by that single expert opinion.

Mediations are Confidential

As a general rule, mediations are confidential. That is, offers and counter offers and settlement materials are not going to be admitted into evidence at a trial. The policy behind this rule is to encourage parties to be candid during mediation without worrying that admissions made at mediation will be used against them later if the dispute cannot be resolved.

Mediation Resources

A professional mediator usually charges by the hour or has a flat fee for the day.  Generally the parties agree to split the fee. In addition, there are many excellent community or neighborhood dispute resolution services that are either free or charge on a sliding scale. 

Margo T. Keller is a Mediator and Arbitrator with Washington Arbitration and Mediation Service (WAMS) with expertise in association disputes.

 

 

 

 

 

 

 

 

 

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