In this article I will talk about mediation – what to expect and how best to use this opportunity to avoid costly litigation.
Preparing for Mediation
Sit down and write all the events that have led up to the dispute. Now take a new piece of paper, or create a new document (in a note book or on your word processor) and write about the same events but this time write about them from the other party’s point of view. How do these versions differ? How are they similar? You should consult a lawyer who can tell you about how the law would treat he facts you have written down. The Law is only one option to find a solution so consider all of this information and decide what is the best outcome you could expect if this were to be resolved without an expensive and time consuming court trial (BATNA) and what is the worst outcome you could expect if this were to be resolved with an expensive and time consuming court trial (WATNA). Your solution will lie between the WATNA and BATNA alternatives you have identified. If you cannot achieve the WATNA, you would be better served by another process, such as arbitration or litigation.
How to Choose a Mediator
The first thing to remember is that mediation is a consensual process – all parties must agree for the mediator to be appointed. The second thing to remember is that using mediation services is not a sign of weakness or fault on your part – after all we have consulted doctors to help us with our medical problems for years. And the third thing to remember is that mediation does not stop you from taking your dispute to the Courts if you cannot come to an agreement. However, with proper preparation and attention it will minimize the likelihood that you will have to do so.
As ADR (Alternate Dispute Resolution) becomes in vogue, many people who should not be mediators have started to advertise themselves as available to provide mediation services. Unlike established fields such as law or medicine there is no standardized qualification and testing procedure for the consumer of ADR services to rely upon. You may have seen the initials C. Med (Chartered Mediator) or Certificate in Dispute Resolution in brochures and advertising for ADR services. Although these are a good indication that the person has taken some training and has passed some level of evaluation of the theory and practice of mediation, they are not an altogether reliable measure of that person=s practical ability. Mediation is a people centered service and you must feel comfortable with the person who will be guiding you through what sometimes can seem to be the barren and hostile landscape of your dispute.
When choosing a mediator, retired Judges or other authority figures (unless they have taken specific training in mediation and negotiation) may not be the most appropriate choice. A Judge’s skills are in the field of decision making and collection and assessment of evidence and fact. They are accustomed to being in a position of authority and to telling the parties that appear before them what to do and when they will do it. A mediator should be facilitating the conversation and an understanding between the parties to a mediation. The mediator’s role is to encourage the parties to create and evaluate their own options rather than imposing a decision upon them. The mediator should serve as a guide rather than expect to be the master.
Who Pays the Mediator?
Unless otherwise agreed the mediators fee is usually shared between the parties. The fees charged may vary depending on the training of the mediator and whether this is their livelihood or merely a hobby. Although price should not be the sole determinate of whether a particular mediator is engaged, it is usually a factor in the decision making process. A far more important aspect of the decision is whether all parties feel comfortable with and have trust in the mediator.
The First Step
Depending on the mediator and parties themselves, the initial meeting may involve each party meeting separately with the mediator (a process called caucusing) or together (known as a joint session). This decision should be that of the parties themselves and is an important first step in the mediation process. When a mediator meets with one party in the absence of the other, it is important that the mediator then also meet with the other party. Although not all mediators are trained or believe in caucusing it can prove to be a very useful tool to assist the parties to examine their cases, ask questions or discuss and examine possible solutions. Caucusing can take place at any time before or during the mediation itself but should always be undertaken only after having secured the permission of the parties to the mediation. Skillful use of caucusing has been the door to reaching a solution in seemingly unsolvable situations because the parties have been provided with the opportunity they need to examine solutions without fear that their apparent readiness to consider a solution will be taken as an admission or acceptance of weakness or defeat.
Telling Your Version of the Events
Sometimes parties are invited to send in a written version of the facts as they see them. These documents should be shared with each party having ample opportunity to read and consider the other party=s point of view. Usually though, the mediator asks each party to tell their story while in joint session so that the other party may hear firsthand how the other side remembers or understands the events that create the conflict story being told. It is not unusual for a mediator to list the agreed facts separately where the parties have a different version of the events. The parties should be encouraged to discuss the facts until all relevant details have been expressed and are > on the table=.
Having reached this point the mediator assists the parties to identify or define one or more questions or issues that need to be answered through the mediation.
Creating Measures for Legitimacy
Frequently parties can agree on the facts that are disputed / undisputed but cannot get past the disagreement as to the fairness or appropriateness of any option or solution. It is therefore imperative that they agree on criteria against which all options can be evaluated. For example if the dispute is over insurance compensation to be paid to a taxi driver whose vehicle was rear ended and this resulted in lost income the discussions may centre around existing policies about compensation of city taxi cab drivers versus rural cab drivers. In the condominium situation there may be a discussion over whether the ultimate costs should decide by engaging a particular contractor to give an opinion for repairs or whether there should be more than one estimate asked for and the average of the estimates would be used to determine the costs of a particular repair. Once all parties agree on a set of principles or criteria that they agree to be fair it becomes much easier to evaluate the options created at the next stage of the mediation.
The parties brainstorm for all possible solutions. It is important that all ideas be noted down and no evaluation of the options undertaken – that is for later once the parties agree that all possible option have been uncovered. There are two concepts that parties to mediation need to be familiar with:
As an example of positions and interests I often use the following story:
Two sisters were sitting at their garden table arguing over who should get the last orange. Unable to agree, as they both said they were the more deserving, it was decided to cut the orange in half. One sister cut the orange and the other chose which half she herself was to get. The first sister took her orange to the living room and, after removing the peel, ate the juicy and sweet flesh within. The other sister took her orange and, after throwing away the flesh, used the peel to make marmalade. Had the sisters discussed their interests (the one sister to eat the fruit the other to make marmalade) they would each have received 100% of what they wanted. By concentrating on their positions they each received only part of what they wanted. In mediation terms this would have been called a win – win or expanding the pie.
Evaluating the Options
Once the options have been identified it is time to discuss whether any of the options contains a solution acceptable to both or all parties to the mediation. It is not unusual to find that the final solution is comprised of a mixture of elements from a number of the solution ideas. By comparing the options to the parties interests and the measures of legitimacy agreed upon earlier the parties are assured that neither of them is acting in an arbitrary fashion and by understanding the interests or needs of their other party they can make adjustments that create viable solutions.
Once a solution has been agreed to it is time to go back to the question(s) and issues that were identified at the beginning of the mediation (when the parties were reciting their versions of the facts) to see whether they have been answered or resolved and, just as important, if there are additional question(s) that have been identified and need to be answered.
 Some people talk about evaluative mediation where the mediator listens to all parties and gives an opinion as to what the solution should be or would be if the matter was decided in a trial. This, in my opinion, is not mediation and although it can be a useful process in the litigation process it has no place in, and indeed is misleading if included as part of, the Interest Based Mediation process.