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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, please refer to the Contact Information page of this site to contact me directly.
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Why mediate?
Increasingly, individuals, professionals, organizations, communities and governments decide to resolve their issues in appropriate, non-adversarial ways - mediation very often being the most flexible and effective choice. Their reasons include: avoiding the unpredictability and some features of arbitration or a lawsuit - which may at times be indicated; flexibility of the mediation process; parties retaining ownership, control and priority-setting of the issues and interests that most need to be addressed; quicker resolution; lower cost; less stress; potential for more satisfactory future relationships among the parties; and other advantages. It is also possible to include in the others who were involved in the conflict or stakeholders affected by the outcomes of the mediation.
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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. Parties 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 dispute resolution terms of a contract or invoked by an authority - including the civil or criminal justice systems as an alternative, or adjunct to, adversarial proceedings and trial.
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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, feasibility and capacity for mediation. Timetables and ground rules for mediation meetings and exchanges of documents, costs and payment and orientation to mediation are agreed to and acted on in advance.
Mediation itself is confidential (except in extremely rare, court ordered public interest issues) The mediator facilitates negotiation among parties to a dispute who are working toward, and retain responsibility for, 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?
The basic role of a mediator is to assess, in consultation with parties' legal counsel if represented, whether mediation is appropriate, assess capacity of the parties to negotiate their interests effectively, design the mediation process, guide the setting of agreed-upon ground rules and conduct and monitor the mediation process impartially, including meetings of the parties. Such a meeting includes the mediator stating the basic facts and outstanding issues as stated in the parties' pre-mediation briefs, parties telling their stories and listening to others' stories, discussing their concerns, interests, issues and options and how these can contribute to elements of settlement and settlement agreement document including settlement implementation.
In a facilitated mediation it is not the role to of the mediator to serve as an expert on the specific substantive 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 asking questions that identify encourage them to address areas that they may wish to explore in crafting settlement options. The mediator may also choose to meet individually with the parties and their legal council. 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 at mediation, some 75%, are able to identify sufficient mutual and individual interests for them to settle their dispute on a full and final basis - perhaps in a half or full day, depending on quality of preparation, conduct and facilitation.
Parties may agree to resolve some issues but disagree on others in their first meeting. Typically, they will also clarify and narrow issues yet to be resolved. If necessary, their mediation may be adjourned to a further session for the parties to reconsider their options for resolving their remaining issues for full and final settlement.
Sometimes, for various reasons, the parties may not settle some issues at mediation. They may decide to proceed to other forms of dispute resolution. During the course of their mediation process, they achieve clearer understanding of their issues and interests, resolve some or most of their issues, and become better able to identify and evaluate any new process and substantive options for further consideration.
The mediatior assists the parties in preparing their signed minutes of settlement, their written summary of the outcomes they have reached during their negotiations with each other - including their action list and timetable for implementation. 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.
Mediation is confidential, a legal issue, in that neither its content nor the mediator can be required or used at subsequent proceedings subject to a few rare conditions, e.g., a compelling public interest decided by a court of competent jurisdiction.
Copyright 1999-2011, Frank McLean - page last updated: 11.07.22-13:04
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