The Second in a Series of Three Articles
Mediation allows parties to explore their conflict, generate options, and negotiate an agreement that they design together, own, and implement.
Mediators are not partisan advocates who favor one party over the other. Instead, mediators advocate for a sound process of assisted negotiation (mediation). Elements of this sound process include acknowledging emotions, listening for convergent and divergent interests, joint problem-solving, and written agreements. Mediators assist the parties by managing these elements.
Given the confidential nature of mediation, mediators do not come with a list of references. This makes it challenging to assess their competence and neutrality. Choosing mediators does involve a metaphorical leap of faith but there are ways in which parties can mitigate this uncertainty. They must remember that they remain in control of any agreement that might be mediated. They can choose to end the mediation at any time. A characteristic of mediation is that it is a voluntary process.
Armed with this assurance, parties can then look for impartial mediators. Mediators demonstrate their fairness by establishing credibility with the parties through their attentive “hearing”. This leads the parties to feel that they are being respected and are being viewed as co-equal to the other side. Mediators cement their credibility with the parties by consistently adhering to the ethical standards and processes that they outline during the preparatory conversations they hold with the parties. They build their credibility further when they reiterate these points in the joint statements they make at the beginning of each mediation session. They subsequently reinforce their credibility by demonstrating their competency throughout the mediation. This means that the parties feel that things are moving forward, however painful and slow this may be. Another sign of competence is when the mediators help the parties to transition from a win-lose mindset to one which encourages them to propose and consider new options that might move the parties closer to agreement.
Mediation is an informal process. This means that the session takes the form of dialogue rather than following the formal rules that govern business meetings and court proceedings.
Mediation does not take place in public places. A characteristic of mediation is that it is confidential. This means that the parties and the mediator do not disclose their negotiations until they are ready to announce the details of any agreement that they have reached.
Mediation is therefore a private process. It also does not include unrelated parties and, except for community conflicts, is closed to the public. This allows the parties the space that they need to conduct their negotiations. Mediators help to make this space safe for the parties’ negotiations.
Mediators are not the decision-makers. In many instances, they are not experts on the technical and legal issues at the heart of the conflict and therefore are unable to offer advice. They do not impose a settlement on the parties. The power to make decisions always remains with the parties.
Mediation is non-binding. This means that the parties have the power to decide whether to terminate or continue with the mediation. What is binding on the parties is the agreement that they negotiate with the mediators’ help, which they are then responsible for implementing.
Mediators do not stand in judgment of the parties. They understand that any conflict is filled with snares that trap parties and that make it difficult for them to reach agreement. Since anyone can fall victim to emotional traps and mental blocks, honest mediators are humble enough to recognize that they, too, fall victim to the snares in their own conflicts. They accord grace to the parties.
Mediation is a process that may not be concluded in a single session. All mediation sessions result in one of three outcomes. They may result in full or partial agreements on the substantive issues at hand. They may also yield no agreement, except possibly an agreement to meet again after the parties have reviewed their options based on insights they gathered during the mediation.
In the next article, we will build on this understanding of mediation by looking at the practice of co-mediation and how parties can use it to address any lingering concerns that they have about impartiality, advocacy, and mediator competency.