Unlike taking a dispute to court, when
two parties take their disagreement to a mediator the process of coming to an
agreement does not need to be extremely rigid and formal. On the contrary,
since the philosophy behind the mediation procedure is based on helping parties
work out their differences without the need for a third party to make a
decision, there is a relatively large amount of flexibility built into the
system.
Indeed meditation is a particularly flexible process, but there remains a necessary element of structure in order to define the direction of the discussions. Without enough structure, opposing parties can easily get carried away with arguments over issues that may distract them from cooperating. Here is a typical breakdown of the mediation process.
1) Mediator Introduces the Process to
Both Parties- The mediation introduction is more than just an ice-breaker, and
at no point does everybody go around the table and say "if I were an
animal the animal I would be is a..." Rather the mediator's job in the
introduction is to explain to everyone the Mediation Process ,and how they are
expected to act during the process. For example, there are certain stages in
the process where everyone is expected to listen quietly to the other party
without interrupting, it is important to establish rules such as this from the
beginning.
2) Statements- If you are thinking
about hiring a mediator than this is probably the stage that you will most look
forward to. Here you, and the other party, present your case in your own words
and from your own perspectives. There is nothing to be nervous about here, but
it is important to present your case accurately in order that you don't
carelessly misdefine the issues.
3) Discussion- Now that everyone has
had a chance to present their perspective, a (hopefully) cordial and
solution-focused discussion takes place. Here it is the mediator's job to keep
the direction of the discussions directed towards finding an agreement. If this
stage goes very well it is sometimes possible to come to a final agreement
right in the discussion stage, thereby skipping the next two steps.
4) Private Caucus- Once everyone has
gotten a chance to hash out the crux of the issues, it is time for the mediator
to meet with each party individually. During the individual meetings, the
parties are able to discuss with the mediator how strong their case is and what
they really have the right to expect during negotiations.
5) Negotiations- Just like it sounds,
the negotiations are the final stage of discussion before signing on the bottom
line to make an agreement.
6) Closure- Although ending the
mediation relationship is not as heart-wrenching as breaking off a beloved
relationship with a loved one, it does require closure. There are basically two
ways that a mediation procedure can end, or "close." One way that a
mediated relationship can end is with an agreement, which is the optimal
ending. It is usually a good idea to take a copy of the final agreement to
check it out with a lawyer before signing.
But some mediation cases do not end in
an agreement that everyone is willing to sign. In such a case, the mediator
will close with a statement as to the progress that the parties have made thus
far. Further, the mediator will present to the two parties possibilities of
where to go in the next steps towards resolving their dispute. The mediator may
recommend another form of alternative dispute resolution (ADR) called
arbitration or perhaps going straight to trial court.
