Use mediation to resolve disputes on your terms…part.4

Mediator to Resolve Disputes

The central part of the mediation process is more fluid in that sometimes the steps are followed in sequence and other times they follow a different sequence.

The skill of the mediator is to determine what is the appropriate approach as the meeting progresses. Learn More about Mediation to Resolve Disputes

At some point they will help the parties to generate and consider options for the resolution of the issues they have identified. They will also usually have a private session with each of the parties to check in with them confidentially to make sure that there are no issues that they feel unable to discuss openly, to help them to consider the alternatives to reaching an agreement in mediation, to prepare proposals or whatever else is needed.

You will notice that negotiation is a step in the mediation process (step 7). This is because Mediation is a facilitated negotiation process. The difference between mediation and simply negotiating directly is that the preliminary stages of mediation create the right environment for collaborative negotiation.

Collaborative Negotiation

Collaborative Negotiation is a process of exploring not only proposals but doing so from an understanding of each others interests. 

Interests mean what matters to each party. Unlike the traditional positional negotiation where proposals are made without any clarity about what the other person really wants, their bottom line and even why they want it, Collaborative Negotiation takes place in an environment where more information about these things is known.

That makes it possible for more creative solutions as when you know what the other person really wants and they know what you want it is easier to develop a resolution that is acceptable to you both. The role of the mediator during the negotiation stage is to help the parties to consider contingencies, what if’s and to play the devils advocate so that the agreements that they reach are as strong and appropriate as they can make them.

If agreement is reached that will lead to a resolution of all of the issues the mediator will document this and discuss with the parties whether they need the agreement to be legally binding and if so how that can occur. If not all issues are resolved the mediator will discuss with the parties the option of further mediation sessions or other processes if progress is not being made.

The final step is to clarify what will happen after the mediation session. This may be booking in for the next session, confirming how any action steps or agreements will be provided to the parties or any other actions to occur following the mediation session. 

While the above describes the basic structure of facilitative mediation where the parties are responsible for reaching their own agreement and the mediator is responsible for facilitating the process that gives them the best chance of achieving that goal.

 

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Other forms of mediation are:

Evaluative Mediation. 

This style of mediation focuses more on outcome and less on the individual interests (what really matters to them) of the disputants. This style is sometimes preferred by lawyers and may be offered in a lawyer inclusive model where both parties are legally represented. In this style of mediation the lawyers may speak for the parties and they may spend most of the mediation session in separate rooms from each other with very little direct communication.

Evaluative mediation may be appropriate if there is a very large power difference between the parties and they don’t expect to have to continue to work together in the future. It is less suited to situations where re-establishing communication between the parties is going to be important.

It also tends to be more expensive than faciliative mediation due to the involvement of lawyers during the process and often the mediators are also lawyers and charge hourly or day rates in line with their usual billable hour rates.

If an evaluative mediator is legally trained or has specialist qualifications related to the issues in dispute they may provide general legal or professional advice but because the role of the mediator is as a neutral independent they can not provide independent legal advice.

Narrative Mediation.

This is a relatively new style of mediation focused on creating a new story to reshape the conflict. The parties opening statements and exploration stage of this style of mediation is often more extensive and the focus is much more on creating a new, mutually acceptable or at least mutually understood story than on any specific terms of agreement.

The issues that people use narrative mediation for a most often interpersonal issues either between individuals, groups or communities.

Traditional mediation used in indigenous and other traditional communities and community group conferencing often use a narrative style mediation rather than the more problem solving, resolution focused faciliative and evaluative styles. Learn More about Mediation to Resolve Disputes

Transformative Mediation.

This is another new addition, primarily focused on rebuilding the relationship. More time is given to understanding the emotional impact of the dispute than other forms of mediation although in all other forms of mediation, with the possible exception of evaluative mediation, the emotional impact of the dispute can often be an item on the agenda. Learn More about Mediation to Resolve Disputes

Transformative Mediation is generally chosen when there is the need for an ongoing relationship between parties such as in the workplace or as co-parents following separation. Mediators who favour transformative and narrative mediation are much more likely to have a social sciences or mental health background than a legal background. Learn More about Mediation to Resolve Disputes.

Mediation to Resolve Disputes continues reading here…

Use mediation to resolve disputes on your terms…part.4

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