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Explaining Mediation: A Private Process for Resolving Disputes

Learn about mediation, a voluntary and confidential process where a neutral party helps people resolve their disputes through communication. Discover why mediation works and when it may not be the best option. Explore the differences between mediation and arbitration. Find out how to sell parties on mediation and establish a panel of trained mediators.

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Explaining Mediation: A Private Process for Resolving Disputes

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Presentation Transcript

  1. Bringing Mediation Home Lynn P. Cohn

  2. Explaining Mediation • voluntary • a private process in which a neutral party helps people resolve disputes • getting two or more emotional people with a problem to talk with each other Mediation is:

  3. Explaining Mediation • making decisions for disputants • free discovery for an inevitable arbitration Mediation is not:

  4. Explaining Mediation Key Features of Mediation Process • Voluntary • Parties decide to enter the mediation process • Parties can leave the mediation process at any time • Parties decide on the outcome of the dispute

  5. Explaining Mediation Key Features of Mediation Process • Neutral, impartial mediator shall: • only mediate matters in which she/he can remain impartial • disclose conflicts of interests; following disclosure, may continue if parties agree • honor the principle of self-determination

  6. Explaining Mediation Key Features of Mediation Process • Confidential • It is a confidential settlement process. • Neither the mediator nor the parties shall disclose the communications/conduct of the mediation, unless all parties agree (with limited exceptions).

  7. Explaining Mediation Why Mediation Works • Quick • Low cost • Flexible process • Maintains/improves relationships • Gets parties to come together/talk

  8. Explaining Mediation Why Mediation Works • Improves poor communication/resolves misunderstanding • Discovers/addresses the true interests of parties • Moves beyond different views of law/fact • Allows creative solutions beyond win/lose • Disputes settle • Parties do not give up right to arbitrate

  9. Explaining Mediation When Mediation Will Not Work • Precedent desired • No relationship and cheaper to contest the claim • Vindication/punishment remains main objective • Jackpot syndrome (maximize/minimize recovery)

  10. Explaining Mediation Mediation Versus Arbitration • Mediation and arbitration are private • Mediation and arbitration both involve the assistance of a trained neutral • Mediation is cheaper than arbitration • Mediation is faster than arbitration • Mediation offers a wide range of solutions, unlike arbitration

  11. Explaining Mediation Mediation Versus Arbitration • Mediation allows parties to control the outcome, unlike arbitration • Mediation may maintain/improve the relationship, unlike arbitration • Arbitration ensures certain closure, unlike mediation

  12. Selling Parties On Mediation • Explain the process at their level. • Find out what the concern is, and address it. • Explain options if case does not settle. • If available, offer data about success/satisfaction. • Give a hesitant party some (but not too much) time. • Let them decide.

  13. Establishing a Panel of Mediators • skill with mediation process • substantive knowledge • reputation for fairness Select mediators based on:

  14. Establishing a Panel of Mediators Key Components of a Mediator Training Program • Mediation demonstration • Simulations, simulations, simulations! • Communication skills • Negotiation skills • Mediation strategies

  15. Establishing a Panel of Mediators Key Components of a Mediator Training Program • Ethical concerns • Feedback • Procuring cause • Opportunities to refresh skills over time

  16. Establishing a Panel of Mediators Alternatives to Setting Up Own Training • Send students to general mediation skills training • Connect to mediation panels for court programs

  17. Materials • Model • Training manual • Forms • Disk

  18. Data Collection • Quality control surveys • Database • Report to NAR

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