Keep these fundamental principles in mind to get effective outcomes in your mediation.
Mediation is a kind of alternative conflict resolution that may be utilized in most non-criminal issues, such as contract, lease, small company, employment, child custody, and divorce problems. All interested parties work constructively toward a settlement or fair resolution of their dispute in a successful mediation, with the assistance of a neutral mediator who aids the process. So, what are the keys to keeping your mediation on track to a fair and amicable conclusion? Here are some ground rules to remember.
Rule 1: The decision makers must be present.
Who makes the decisions? This seems to be a simple question. When a party in a lawsuit is an individual, that person makes the decision. The answer is less apparent when one of the parties is a company or another organization. When it comes to enterprises and other organizations, the person who has to participate is someone who has the authority to accept any offer of settlement made by the other side.
Participating in a mediation entails being directly engaged in all events that occur during any mediation session, gaining a true picture of the disagreement, and having the opportunity to express ideas and concerns. Physical presence is the optimum form of involvement, yet engaging in a mediation through videoconference or telephone may be suitable when physical presence is not available.
Rule 2: All vital papers must be present physically.
Mediation is working out disagreements concerning a conflict, and papers may be quite helpful in accomplishing that aim. In a disagreement between a homeowners organization and a condominium owner, for example, the covenants, conditions, and limitations must be physically present at the mediation session. And, in the event of a disagreement between an insurance company and a policyholder, the policies must be present.
Rule 3: Be correct only to a degree.
In every debate, each side feels that their stance is correct. The issue “Who is right?”—that is, who is likely to eventually succeed if a settlement is not achieved and mediation is followed by a lawsuit—is significant in a mediation since correctly anticipating the possibilities of final victory limits which resolution choices are practical. However, participants in a mediation should not concentrate only on proving that they are correct (or more correct than the opposing side), since this technique seldom results in settlement.
Rule 4: Make a bargain.
The purpose of a battle is to win. Fighting, on the other hand, entails pursuing your own demands without concern for the impact on your opponent. Fighting requires a tremendous investment of effort in repelling your opponent’s movements.
The purpose of mediation is resolution. A substantial amount of work must be expended in order to discover solutions that will satisfy both sides. Finding solutions that suit both sides is similar to negotiating a business transaction. It must benefit both sides or there will be no settlement. So, in mediation, you should consider not only your own interests, but also the interests of your opponent.
Rule 5: Show respect to the other party.
Any arrangement reached via mediation requires consent (agreement). A party who has been offended is unlikely to provide permission. And a party that feels disrespected is likely to be preoccupied with this to the exclusion of anything else, which is detrimental to the mediation process. This isn’t a case of “being kind.” It comes down to avoiding thoughtless or gratuitous contempt.
Rule 6: Be convincing.
In order to have a successful mediation, you must be convincing about the merits of your position on the content of the dispute, as well as the mutual advantages of any prospective compromise.
The traditional method of persuasion entails developing the correct approach, at the right moment, with the proper emotional tone, the power of objective reasoning, and the strength of personal credibility. A relatively modern notion that may be useful is a unilateral offer made by one party to the other. Such an offer may and often does elicit a reciprocal offer from the opposing side, resulting in a positive cascade until a compromise is found.
Rule 7: Concentrate on your hobbies.
In their groundbreaking work, Getting to Yes, Roger Fisher and William Ury discuss the significance of interests. The parties’ interests, according to Fisher and Ury, characterize their conflict. This is a groundbreaking assertion since previous thinking held that a disagreement is characterized by the viewpoints of the parties. An “interest” is a desire. A “position” is one approach to fulfill a desire.
Understanding your own interests is critical, but it is just one aspect of your job in a mediation. The other party has interests as well, and you must be aware of them. Identifying the interests of the other party is frequently more difficult than identifying your own. This needs some conjecture at first, but once a mediation session begins, you may ask questions and gain information from what the other side says.
Rule 8: Be a problem solver for the sake of your interests.
The objective in reaching a settlement is to reconcile interests. Possibilities must be found or developed, and those options must enable both sides to accomplish enough of their objectives that the options are preferable to no settlement at all.
Reconciling interests necessitates problem solving, which requires creativity and an open mind. Brainstorming, which is a process in which people identify every idea they can think of to reconcile their interests, is an useful tool for producing this sort of open thinking. There is no rejection or criticism of ideas, and ideas may grow on one another. Better ideas frequently emerge late in the process, when individuals feel they have exhausted all possibilities. Once a number of choices have been found, the parties may assess them and choose those that result in the greatest benefit to each side.
Rule 9: Get over your rage.
At some time throughout the mediation process, the parties realize that they may not be “most correct” regarding the content of the dispute, or that they will need to take less (or give more) in order to reach a mutually acceptable agreement. When this occurs, the participants often get frustrated, and then furious. Many parties assume that their own anger indicates that things aren’t going well and that the mediation should be terminated. This is untrue. A settlement may still be reached if the parties can agree on a resolution that is better for their interests than no deal. Creating such an alternative is work that can be done even if – and in part because – the parties recognize that they will not get what they first requested.
Rule 10. is to be patient.
Mediation necessitates transformation. Parties in a conflict frequently assume they are correct (and usually are). Each party may or may not comprehend their own and the other party’s interests, and each may have unreasonable expectations. Each side may be hesitant to show any respect to the other. It takes time to address these concerns, and it takes time for people’s opinions to shift. It is critical for mediation parties to give time for these changes to occur. This is the most crucial of the 10 guidelines for a successful mediation.