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MEDIATION QUESTIONS
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Frank McLean, Mediator & Facilitator
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This page provides answers to some frequent questions on mediation. If you have additional questions, navigate to the Contact Information page of this site to contact me directly. I will get back to you as soon as possible.
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Why mediate?
Increasingly, individuals, professionals, organizations, communities and governments decide to resolve their outstanding issues in appropriate, non-adversarial, ways, mediation being one. Their reasons include: flexibility of the dispute resolution process, retaining ownership, control and priority-setting of the issues and interests that most need to be addressed, quicker resolution, lower cost, less stress and potential for more satisfactory future relationships among the parties. It is also possible to include a wide range of interests and stakeholders.
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How does one get to mediation?
Disputing parties may agree among themselves to explore, undertake and share the cost of mediation unrepresented by a lawyer. Represented parties most often do so on advice and referral of their legal counsel or other professional advisor. Also, mediation can be part of an organization's policies, mandated by the terms of a contract or invoked by an authority - including the civil justice system.
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What is "The Mediation Process"?
"The Mediation Process" is the mediator's responsibility; and consequently, is designed, convened and conducted by the mediator. Mediation ethics expects that all parties are acting in good faith, and have comparable capacity to negotiate their disputes.
Mediation can be undertaken by the parties themselves or parties and their advisors. There can be two or many parties, with other stakeholders or experts involved in various ways if there is a need. Mediation can be conducted in person or in teleconference calls.
Mediation begins with pre-mediation consultations between the mediator and the parties and their advisors. The purpose is to ascertain the parties' situations and expectations, the presence of and needs for competent advice on any legal issues as well as the appropriateness and feasibility of mediation. Timetables and ground rules for mediation meetings and exchanges of documents and other information prior to mediation are agreed to in advance.
Mediation itself is confidential, mediator-assisted negotiation among parties to a dispute who are working toward resolving it. This negotiation is based on the parties' present and future interests, not on their past or current fixed positions. During negotiations among the parties, the interests of others not present may prove to be important - especially if they stand to be affected by the issues in dispute or their resolution. Independent expert opinion or benchmarking information may be useful in dealing with specific issues.
Where legal issues are involved, legal advice is strongly recommended.
Mediation typically concludes with the parties concurring in the specifics of the agreements they have reached. The mediator notes these agreements. The practice also addresses an implementation process and timetable in settlement discussions. Settlement Agreements are drafted by counsel of represented parties based on the mediator's notes of what the parties agreed to at mediation. See also "What are some possible outcomes?" below.
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What is the mediator's role?
My role as mediator is to assess whether mediation is appropriate, assess the capacity of the parties to negotiate their interests effectively, design the mediation process, guide the setting of agreed-upon ground rules and conduct the mediation process impartially in meetings of the parties. This includes the parties telling their stories, discussing their concerns, interests, issues and options and how these can contribute to elements of settlement and settlement implementation.
It is not my role to serve as an expert on the specific matters in dispute, for which parties remain responsible, or to propose a settlement. However, where indicated, a mediator can prove useful to the parties in identifying areas that they may wish to explore in crafting settlement options. The parties retain ownership and control of their issues and of the responsibility for resolving them.
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What are some possible outcomes?
Parties often are able to identify sufficient mutual and individual interests for them to settle their dispute on a full and final basis. Alternatively, parties may resolve some issues, narrow others and not resolve the remainder.
Sometimes, for various reasons, the parties may choose not to settle on either a full and final or a partial basis. They may decide to proceed to other forms of dispute resolution. However, during the course of their mediation process, they achieve clearer understanding of their issues and interests, as well as identifying new options for further consideration.
The practice prepares a written summary of the outcomes reached by the parties during their mediation including their action list and timetable for follow-through. These brief, point-form notes also provide lawyers representing the parties with a mutually-agreed basis for drafting and executing any related legal agreements that may need to be prepared by counsel.
Copyright 1999-2003, Frank McLean - page last updated: 10 Apl 2003
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