Mediation is a form of alternative dispute resolution that can be used in most non-criminal cases, including disputes involving contracts, leases, small businesses, employment, child custody, and divorce. In a successful mediation, all interested parties work cooperatively toward a settlement or fair resolution of their dispute, with the help of a neutral mediator who facilitates the process. So what are the keys to keeping your mediation on the path toward a fair and agreeable resolution? Here are ten rules to follow. (To learn more about whether mediation is the right choice for resolution of your dispute, check out Nolo's articles Why Consider Mediation? and Getting the Other Side to the Mediation Table.)
Who is a decision maker? This seems like an easy question. When a party in a lawsuit is an individual person, then that person is the decision maker. But when a party is a business or other entity, the answer is less clear. When it comes to businesses and other entities involved in a mediation, the person who needs to participate is someone who has the power to accept any offer of resolution made by the other party.
Participating in a mediation means being personally involved in all of the events that occur during any mediation session, getting the opportunity to gain a realistic understanding of the dispute, and having the chance to voice opinions and concerns. The best form of participation is physical presence, but participating in a mediation by videoconference or speakerphone may be appropriate when physical presence isn't possible.
Mediation involves working through the differences of opinion about a dispute, and documents can be invaluable in achieving that goal. For example, in a dispute between a homeowners association and a condominium owner, it is important to have the covenants, conditions, and restrictions physically present at a mediation session. And in a dispute between an insurance company and a policy holder, it's important to have the policies present.
In every dispute, every party typically believes their position is the right one. In a mediation, the question "Who is right?"—that is, who is likely to ultimately prevail if a resolution isn't reached and mediation is followed by a lawsuit—is important because realistically predicting the chances for ultimate success defines which of the options for resolution are realistic. However, parties in a mediation should not focus exclusively on demonstrating that they are right (or more right than the other side) because this tactic rarely does much to bring about resolution.
In a fight, the goal is to win. But fighting involves pursuing your own demands without regard for the effect on your opponent. And fighting requires a significant expenditure of effort in resisting your opponent's moves.
In mediation, the goal is resolution. Achieving resolution requires a significant expenditure of effort toward finding options that will satisfy both parties. Finding options that satisfy both parties is very much like building a deal in a commercial context. It must work for both parties or else there is no deal. So in mediation you should be concerned not just with your own interests, but also with the interests of your opponent.
Consent (agreement) is essential to any deal that is made in mediation. A party who has been insulted is not usually inclined to give consent. And a party who is feeling disrespected tends to be distracted by this to the exclusion of all else, which is counterproductive to the mediation process. This is not a matter of "making nice." It is a matter of avoiding mindless or gratuitous disrespect.
In a successful mediation, you must be persuasive about the merits of your position on the substance of the dispute, and also be persuasive about the mutual benefits of any potential deal.
The classic means of persuasion involves establishing the right approach, at the right time, with the right emotional tone, with the force of objective logic, and with the strength of personal credibility. A more recent idea that can be helpful involves a unilateral offer by one side to the other. Such an offer can and often does draw a reciprocal offer from the other party in return, which can create a positive cascade until a compromise is reached.
The importance of interests is described by Roger Fisher and William Ury in their seminal book, Getting to Yes. According to Fisher and Ury, the parties' interests define their dispute. This is a revolutionary statement because the conventional wisdom had been that a dispute is defined by the parties' positions. An "interest" is a want. A "position" is one way to satisfy a want.
Knowing your own interests is essential, but it is only part of your task in a mediation. The other party has interests too, and you need to know what those are. Identifying the other party's interests is usually more difficult than identifying your own. Initially this requires a certain amount of speculation, but once a mediation session starts, you can ask questions and glean information from what the other side says.
In achieving resolution, the task is to reconcile interests. Options must be identified or created, and those options must allow both parties to achieve enough of their interests that the options are better than no deal at all.
Reconciling interests requires problem solving, and problem solving requires creativity and an open mind. A good technique for generating this type of open thought is brainstorming, which is a process in which parties identify every idea they can think of to reconcile the interests. No idea is rejected or criticized, and ideas can build on one another. The better ideas usually come late in the process, after people believe they have run out of ideas. Once a number of options are identified, then the parties can evaluate them and select those that result in the maximum benefits for each party.
At some point in the mediation process, the parties begin to understand that perhaps they are not "most right" about the substance of the dispute, or that they will need to take less (or give more) in order to make a mutually acceptable deal. When this happens, the parties often start to get frustrated, and then angry. Many parties believe that their own anger is a sign that things are not going well and that they should stop the mediation. This is incorrect. A deal can still be achieved if the parties can consent to a resolution that satisfies their interests better than having no deal. Developing such an option is work that can continue even if—and in part because—the parties understand that they will not get everything they initially demanded.
Mediation involves change. Parties in a dispute typically believe they are right (and most right) about the dispute. Each side may or may not understand their own interests and those of the other party, and each may have unrealistic expectations. Each party may be unwilling to treat the other with any degree of respect. It takes time to address these issues, and it takes time for people to change their minds. It is important for parties in mediation to allow time for these changes to occur. Of these ten rules for a successful mediation, this one is the most important.