The Beauty Of Going To A Mediator- Structure And Flexibility

Unlike taking a dispute to court, when two parties take their disagreement to a mediator

the process of coming to an agreement does not need to be extremely rigid and formal. On the contrary, since the philosophy behind the mediation procedure is based on helping parties work out their differences without the need for a third party to make a decision, there is a relatively large amount of flexibility built into the system.

Indeed mediation is a particularly flexible process, but there remains a necessary element of structure in order to define the direction of the discussions. Without enough structure, opposing parties can easily get carried away with arguments over issues that may distract them from cooperating. Here is a typical breakdown of the mediation process.

1) Mediator Introduces the Process to Both Parties- The mediation introduction is more than just an ice-breaker, and at no point does everybody go around the table and say "if I were an animal the animal I would be is a..." Rather the mediator's job in the introduction is to explain to everyone the mediation process, and how they are expected to act during the process. For example, there are certain stages in the process where everyone is expected to listen quietly to the other party without interrupting, it is important to establish rules such as this from the beginning.

2) The Parties Speak- If you are considering going to a mediator than this is the part of the process where you should be prepared to present your case. It is important to focus on what is important to you in order to hone the subjects of the discussions to focus in the direction that you want.

3) Discussion- After everyone has presented their initial introduction then everyone discusses together the issues on a general level. The goal of this stage is just to define the issues. Later on, there will be more time for negotiating solutions. It is nice to note that there are cases where solutions present themselves right from this stage, and sometimes it is possible to skip to the last stage of "closure" if the discussion goes really smoothly.

4) Private Caucus- When the mediator meets with each party individually they are able to "dig deeper" into the entrails of the disagreement. As a result the mediator is able, at this stage, to define for the mediated parties what each one can expect to reasonably try to argue for their case.

5) Negotiations- This is the final stage of discussion where everyone meets with the goal of hashing out an agreement that everyone will be willing to sign in the final stage.

6) Closure- Although ending the mediation relationship is not as heart-wrenching as breaking off a beloved relationship with a loved one, it does require closure. There are basically two ways that a mediation procedure can end, or "close." One way that a mediated relationship can end is with an agreement, which is the optimal ending. It is usually a good idea to take a copy of the final agreement to check it out with a lawyer before signing.

Never-the-less if the discussions did not end in an agreement the closure stage does serve a purpose. If there is no agreement reached then the parties meet together with the mediator, and the mediator will help to define for them what progress has come about. The he or she may suggest to them possible directions to pursue in the next step towards resolving the dispute.

The structure built into the mediation process focuses all parties towards a solution, while the flexibility allows for more creative and cooperative discussion.

by: Karel Stan

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