Contact: Ian Szlazak
Guidance: Choosing a Mediator - The Mediation Process
Choosing a Mediator
There are different views on what to seek in a prospective mediator. Most would agree that the candidate should have no shortage of process experience, that is, be an able assistant to the parties and representatives in moving their discussion forward towards a resolution or some other meaningful culmination. The mediator should be a model of listening behaviour and courtesy to all. Where many will differ is the degree to which the mediator should understand the substantive issues. Being able to comprehend issues is one thing, but in our view, the mediator should not go so far as to give advice or say what you should do with reference to a substantive issue. Mediators who know a great deal, possibly more about the substance of the dispute than the parties or their representatives, must check any impulse to "second guess" the participants and the choices that they make. On the other hand, a mediator can be invaluable in assisting you in making progress in dealing with your substantive issues. If you want more evaluative input, consider an early neutral evaluation (ENE) or arbitration, possibly in combination with mediation. Is your service provider sufficiently versatile to handle your problems?
How much experience is enough? In our view, a mediator should have at least 50 cases behind them in order to be adept in a variety of situations. A mediator should have a minimum of 80 - 100 hours of training, irrespective of whether he or she is able to join a roster with considerably less training. Interview prospective service providers and ask them about their training and what they know about negotiation. Have they done any writing, training or speaking in the field? Do you like their "style" when you speak to them? Do you feel that you are making a "connection" in terms of expectations? Ask around - what have other people thought of the individuals you are considering as your service provider?
The Mediation Process
There are considerable variations in how a mediation is conducted. Many are convened with little prior contact between the mediator and the parties/their representatives. It is preferable that briefs setting out positions are exchanged long enough prior to the mediation session to allow for a thorough review by "the other side(s)" and the mediator. These briefs often contain a "statement of issues" setting out the reasons for a position, as well as documents that are being relied upon. Important documents are usually attached, often marked by numbered tabs. Referring to excerpts from important supporting documents in your statement of issues is a good way of emphasizing a point.
We believe that relaxed participants are more likely to have a productive, forward-moving mediation than individuals who are highly stressed or distracted. Accordingly, our opening address emphasizes the "user-friendly" character of the process and its general objectives and "ground rules". Ground rules include not interrupting each other, the "without prejudice" nature of the mediation (more below) and an explanation of the sub-process of "caucusing" (more below).
If the matter is litigious, the plaintiff(s) starts the process by stating his or her perspective(s) on the issues. If a party is represented, the party and representative work out who will do the speaking and what each will deal with. This is one of the first of several strategic decisions you should contemplate. The defendant(s) follow, also setting out their perspective(s) on the matter. Some parties like to approach the process by making respective "openings" and later going through the issues in greater detail; others dispense with the "opening" and move to a detailed exchange of information right away, which in turn may move them in short order to a negotiation aimed at resolution. The Resolution House approach to how you conduct yourself in this regard is to allow you to find your own way, or style, the emphasis being not on mediator control of the mediation but on you using the process in the most comfortable manner possible, which in turn usually maximizes opportunities for the process to deliver results. However, Ian Szlazak will intervene when, for example, behaviour is getting in the way of respectful progress. The mental preparation process for getting ready for mediation is highly individual, but we think that all prospective parties are well-advised to carefully review our preparatory guide.
You are reminded that you will only make progress if you listen carefully to the other side(s) and understand that their position(s) is not the same as their interest(s). Identifying interests requires introspection and considerable effort, both before and during the mediation. Discussions focused on finding common ground, marked by views supported by rationales, frequently assist the parties in honing in on a resolution that is mutually satisfactory. All the while, it is helpful if you take stock of your progress in the context of the risks and potential rewards associated with alternative ways of getting your "answer" - such as litigation or other forms of adjudication. Relative success must be weighed in terms of many criteria, including how much control over the dispute you want to retain, the cost of getting an "answer" elsewhere, the psychological impact of uncertainty, waiting and disputing, privacy concerns and so on.
Mediation is a process that allows for the expression of human feelings. Parties are invited to say how they feel about the dispute or issues. The dialogue between parties, whether it be facilitated through their representatives or not, also is flexible enough to include discussion of rights and laws. You must identify areas and approaches where you think that you can make progress. If resorting to objective criteria or external factors will help you, these tools should be used.
You are encouraged to speak to the other party(ies) directly. Frankness is encouraged and supported by the "without prejudice" character of mediation, which means that should you not resolve your dispute and need to proceed to some form of adjudication, the exchange of positions and related information in furtherance of attempting to settle the matter at mediation cannot be relied upon. "Offers" can be framed in other ways so as to be able to refer to them later. Where personal contact in the same room is not productive or desirable, you may use the mediator as a conveyor of information, going from one room to another, which allows you to"caucus" privately with the mediator and your own advisor(s). Ian Szlazak's commitment to you in this sub-process is to convey the content of your proposals to the other side(s), as specified, and vice versa, and not to distort the exchange of information. During caucus it also is possible for you and the mediator to have broader private discussions, which will not be divulged to the other side(s). The mediator can act as a "foil" for you, reminding you of some of the problems you may have in the dispute. These discussions are intended to be helpful, not coercive. Where a stalemate is evident, several mediation techniques may be turned to. The hallmark of a Resolution House mediation is an objective, equitable approach to the challenges you are facing.
It is clear that a mediator assists you in finding your own solution; a mediator does not adjudicate the issues or coerce you into a resolution. While the process does not come with a guarantee of success in every situation, it is without question a process that gives you, if you are willing to work hard and in good faith, a fine chance of finding a resolution that satisfies everyone. And that's what is meant by....
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