Conflict Resolution and the Mediation Process

What is Mediation?

Mediation is a voluntary, out of court method of resolving disputes or conflict between two or more parties.  It is an alternative dispute resolution (ADR) where a third party, the mediator, helps the parties concerned to negotiate a mutually beneficial agreement.

Mediation is particularly effective for conflict resolution as it is far more structured, is private and confidential and has the advantage of allowing both parties to suggest agreement solutions that would not normally be accepted in a court of law.  Through the mediation process, an amicable, mutually beneficial resolution may be found and where a settlement agreement is reached and signed, is binding to both parties concerned.

The Role of the Mediator

The role of the mediator is to assist both parties through the mediation process allowing them the chance to state their cases and to discuss various options with each other as well as with the mediator.  The mediator remains impartial throughout the entire process and at no time passes judgement or lays blame but will assist the parties to keep the lines of communication open and to assist in clarifying the dialogue between the disputants.

Types of Disputes Resolved through Mediation

There are many types of disputes that can benefit from mediation including family disputes such as separation, divorce, financial disagreements, prenuptial agreements, child custody and estate disputes as well as end of life and medical issues.  In the workplace, mediation can facilitate resolving such issues as wrongful termination, harassment, discrimination and grievances.  Community mediation can assist with various issues related to disputes within a community including noise pollution, fencing and property border issues as well as pet issues.  Various other disputes have been successfully resolved through ADR including domain name disputes, online disputes, landlord and tenant disputes as well as personal injury and contractors and realty disputes.

What is the Mediation Process?

Step 1.  –  Contacting the First Party. 

A meeting will be held with the first party who is generally the party that first contacted them.  The mediator will listen to their account of the dispute and will assess what the primary issue is in the dispute and with work with the third party to assess what they consider to the options and ways to move forward in resolving the dispute.  On occasion the mediator may assess that the case is not ideal for mediation and will refer them to the most appropriate resolution process.  If the case is suitable for mediation, the mediator will inform the first party of the process and make the fully aware of procedures and move onto Step 2.

Step 2. – Contacting the Second Party

The mediator will progress through exactly the same process as with the first party, assessing the primary issue as the second party see it and also possible solutions and ways to move forward with the negotiations.  Once both parties are in agreement to voluntarily move forward with mediation, the mediator will move onto Step 3.

Step 3. – Setting up a Face to Face Meeting

The mediator will return to each party involved and will discuss in detail the process and future agenda including a time and date that is suitable for both parties to meet as well as to establish the ground rules for the mediation.

Step 4. – Mediation Procedures

The mediation is best hosted in a neutral environment and involves five different stages including the opening statement from the mediator, the opening statements of both parties, a joint discussion followed by private caucus by each party with the mediator and a closure of the mediation.  The entire process takes between 1 ½ to 3 hours and in the event that a resolution has not been achieved, the mediator at this time may suggest making arrangements for a further face to face, or an alternative plan of action.

•  Mediators Opening Statement – The opening statement from the mediator should inform the disputing parties of their qualifications and responsibilities throughout the process.  The importance of gaining the trust and confidence of both parties is very important and will facilitate open and candid communication.  In addition the mediator will explain the ground rules for the process and will explain clearly the role of confidentiality in the process and what can and cannot be held in confidence.  The mediators final statement should be to congratulate the parties for taking the steps to try and resolve their dispute in an amicable way and to express their own confidence in the mediation service and the high level of success that it has achieved.

• Opening Statements of Both Parties – Both parties will now have their chance to state their cases without interruption.  It is common for the Complainant to speak first.  It is vital that both parties get to explain fully their side of the story as this process of venting is extremely therapeutic and is a vital step in the process of resolution.  Opening statements can include emotive and extraneous information, but the mediator may find that this information can assist in helping both parties to understand underlying problems that may require addressing. Once the opening statements have been completed, the mediator will have a clearer understanding of how far or how close the two parties are to a resolution and will use their skill set to establish the best route forward.

• Open Joint Discussion – The mediator will generally start the open joint discussion by offering a summary of the two parties opening statements and may ask of each of the parties to clarify certain points of discussion.  Each open discussion is different with the mediator maintaining control of the pitch and emotive level of the discussions.

• Caucus – At some point in the proceedings, either party may ask for a caucus where the mediator will move into a private room and discuss certain issues with the party.  It is important that all parties are aware that anything stated in a caucus is said in the strictest of confidentiality and as a result, with consent, the mediator may not discuss anything that is said in the caucus with the other party.  Caucuses have various functions besides giving both parties time to refocus, they are also used to discuss options for a settlement in a secure setting or to discuss sensitive information in a protected setting.  The mediator also has the right to call a caucus if they feel that this will facilitate the process and will help them to regain control over the proceeding, particularly when tempers rise or when emotions become to0 much for one or more of the parties.

• Closure – Closure of the mediation may or may not involve a settlement agreement.  At a certain point in time if no agreement has been reached, the mediator will resign to the fact that a settlement is not possible in the timeframe and that all possible options have been exhausted.  The mediator should still congratulate the parties for taking the time to attempt conciliation and that if they are willing to continue the process of mediation that they could take a little time to reflect and perhaps make another appointment.  In the event that a settlement is reached, the mediator will write up an agreement proposal and will have both parties sign it and in the event that legal representation is required will inform both parties of how to move forward with the settlement paperwork.

Understanding the mediation process as well as assessing both the advantages and the disadvantages will help you to determine if this ADR is the right conflict resolution procedure for you and your conflict issues.