Mediation

This book is for people who would like to learn more about mediation because they are interested in it or expect to participate in it; and for people who are or would like to be mediators. Chapter One introduces, and then compares and contrasts three different approaches to dispute resolution. A disputing party, in seeking a favorable outcome to a dispute, may focus on its power (physical, economic, or psychological), its rights (normally based on law or contract), or its interests (needs, wants, concerns). In Chapter Two, we consider the most common dispute resolution processes: negotiation, court, arbitration, and mediation, in terms of the dispute resolution approach - interests, rights, or power - typical of each. This chapter also provides advice to disputing parties on selecting a dispute resolution process suitable for their dispute. Chapter 3 focuses exclusively on mediation. It discusses why some disputants and/or their lawyers are reluctant to mediate, and suggests how to address that reluctance. It then turns to the practical aspects of getting started with mediation – selecting a mediator (including information a potential mediator should disclose to the parties) and developing ground rules for the mediation. Most important, Chapter 3 describes the mediator’s role at each step of the mediation process, from (1) aiding the parties in discovering their interests and priorities; (2) using those interests and priorities to assist the parties in developing potential settlements; (3) encouraging the parties to make the best settlement offers possible and (4) aiding each party in comparing the best agreement available in mediation with the best outcome it can reasonably expect outside mediation. Chapter Four turns to the most common difficulties encountered in mediation, and provides suggestions for overcoming those difficulties. These include: the parties’ inability to reach agreement; the reluctance of each party to make the first offer; highly emotional parties; parties focused narrowly on who is “right” and who is “wrong”; and steps to take when the mediation appears to be at an impasse. Because so much mediation occurs in relationship to a pending or potential lawsuit, Chapter 5 examines the relationship between mediation and the law. Among the topics treated in Chapter 5 are the legal protections for the confidentiality of mediation; the disputants’ obligations to attend and engage in mediation; the mediator’s obligation to act impartially and with clarity and integrity; preservation of the disputants’ free choice whether or not to settle in mediation; and the protection of the judicial system’s role and reputation. In Chapter 6, we provide frank advice for readers who think they would like to be mediators. We begin by quoting experienced mediators on the psychological rewards and social value of serving as a mediator. The chapter then focuses on the difficulty of making mediation a full-time career – primarily a greater supply of would-be mediators than demand for mediation services. The chapter concludes with advice on overcoming that difficulty. Here we suggest the importance of taking one or more basic mediation training courses, we discuss the value of getting appropriate credentials (often, but not always, a law degree) for some kinds of mediation; developing a marketing plan, and keeping up with developments in mediation by joining mediator organizations and reading about mediation (with suggestions for both).