What happens in mediation discussed.

In discussions with a variety of people it seems the tendency is to talk about such things as reasons why one should turn to something, in my case for example, mediation. When you’re done and no business is generated you wonder why. One reason is they don’t know the what happens in a mediation, a result of getting a long term care policy, agreeing to buy a car but here’s the bad news when you see the actual sales agreement. So, this blog entry is about what happens in one of my mediation sessions.

The first thing is the greeting and a genuine welcome – bring out the humanity of those of us who are participating in this process. Try to go for first names. Ask about comfort, give the clients an idea where the amenities are at in case they need to utilize them. Ensure there is a response. Oh, and I should have mentioned the first assumption – we are all in the same room – which is not always possible or advisable. However, let me stick with the we’re in the same room together theme.

As a mediator I try to use the demeanor of the parties, their body language, the tone of their voice, whatever can provide a clue about a client’s mindset – the words they use during the greeting - to determine an appropriate approach for their specific case.

Another mundane but necessary and sometimes essential fact is the seating arrangement – sitting between them, or in front of them, or whatever is called for in a particular situation.

I then launch into a brief description of the process – which to some may be too wordy – too much detail – not enough – I try to gauge when there’s enough info and understanding out there for them to appreciate what it is I’m intending to do from process standpoint. I may say something like:

“Mediation is a process of negotiation in which I serve as a guide. You are in control of the information you wish to share, negotiation strategy, and decisions made – which must be mutual except to stop mediation – any of us can unilaterally make that decision – in my case that would only happen if I feel we’ve reached a point where it’s no longer productive to conduct further negotiations because we haven’t quite figured out how to resolve our differences, there’s too much of a power imbalance, or there is a threat of violence.”

We start in joint session and continue that way during mediation. However, if we feel it’s more productive to go to separate sessions any one of us can make such a suggestion. And if we are in separate session and you tell me something you want me to keep confidential from the other side I am bound to do so. And, as it pertains to confidentiality, it is protected under our states laws which basically means what is said in this mediation stays in this mediation and cannot be used in subsequent litigation – nor can I be subpoenaed to appear in court.

We all attest to confidentiality by reading, understanding, and signing this confidentiality agreement (agreement is circulated and all participants sign it). Are there any questions?

Then I turn to verbalizing ground rules which include such caveats as:
Not interrupting while the other is speaking.
No verbal abuse towards the other party or towards me.
Exercising civility towards each other.
No threats of violence.

Since in most of my cases we do preparatory work for a joint mediation session in which I work with each of the clients separately. Now why do that. Well, one reason is to decide whether I can and should take the case – is it ripe (ready) for mediation? Am I the right mediator to take on this case – is there specialized knowledge required which I do not have? What kind of expectations does a client have of me and a mediation? Who is going to be there and does it match up with – who has to be at a mediation? There are many other factors which need to be considered including – power – can the people in dispute deal with each other on equal terms is there too much power on one side making it more of “do what I want or else”. That’s not mediation. In such instances for example it may be necessary for a client to engage a counselor – an attorney for example – in order to remedy a power imbalance. And finally, I want to know enough about their situation and negotiating strategy so I can tailor my approach to the clients needs.

Failure to hold preparatory sessions can lead to such surprises as not realizing there is a “restraining order” in place, and here they are in the same room – one fearful of the other. Or, one of the people in dispute has no intention of working towards resolution but rather is just there to fulfill a court order – some still hide this intent until such time as it seems agreement is near and they refuse to further participate. Another example of what happens without a preparatory session is that a client brings a multi-page statement they insist on reading which is a litany delving solely on the past. They may bring someone with them which is not agreeable to the other person in the dispute. Or they may not be aware that they should bring some documents with them or thye bring too much documentation expecting all of it to be reviewed and discussed during a mediation session. It goes on and on – so insist on some preparatory work.

I also try to prepare clients on what to expect. For example, I will brief them on the process and ask them to come prepared with an “opening statement” along with a suggested format.

In the next blog entry I will cover what works in an opening statement and what does not and proceed into steps which follow.