The mediation process, as compared to other types of dispute resolution, might feel more casual and improvised. Some or all of the following six steps can be included in the mediation process:
1. Make a plan.
The mediator assists the parties in deciding where they should meet and who should be present before the mediation process begins.
Depending on the situation, each party may have lawyers, coworkers, and/or family members on their side.
Assume that a consulting firm and a printing firm have chosen to hire a former judge with around ten years of mediation expertise.
(Retired judges are increasingly turning to mediation as a second profession.)
At the mediator’s office, the two corporations’ three-person teams meet. You bring a colleague and a lawyer with you as a senior manager of the consulting firm.
The printing company’s personnel also includes two managers and a lawyer.
2. The introduction of the mediator.
Kathy, the mediator, introduces the participants, explains the mediation procedure, and establishes ground rules with the parties all in the same room.
She also explains her purpose for the mediation process: to assist the parties in reaching a negotiated agreement on a contested consultation fee and to amicably resolve the business relationship.
3. Welcome remarks.
Following the mediator’s introduction, each party gets an uninterrupted opportunity to give their side of the argument.
They may also take time to express their sentiments in addition to presenting the topics they perceive are at stake.
Assume the printing company’s spokesperson begins by expressing his surprise at being provided with a bill for the additional consultation services.
“I don’t understand how you could charge us for work you didn’t do in the first place,”.
He says to you and your team, “since your training obviously didn’t work.”
You explain that your contract expressly stipulates that any work done after the initial training session will be charged at your standard rates.
You say, “I’m sure we addressed this over the phone at some point.” “And, in any event, during the initial training, a lot of your staff slacked off.
4. A joint discussion is held.
Following each side’s opening statements.
The mediator and the disputants ask questions in order to gain an understanding of the concerns of each party.
Because disputing parties typically have trouble listening to each other, mediators act as interpreters, repeating what they’ve heard and asked for clarification as needed. When parties hit a stalemate, mediators identify the roadblocks in their way and strive to get the conversation back on course.
During this stage, the mediator in our previous negotiation example tries to figure out why the two parties have such opposing perspectives on how training went. In response to the mediator’s questioning, Jeremy, the printing company’s representative, concedes that recent layoffs have lowered organizational morale.
You remark, “That’s no justification for not paying your bill.”
“In fact, if you admit the fault is with you, not with our training, it’s all the more reason you should pay in full.”
Jeremy counters, “Your staff didn’t do a good job of understanding who they were working with.”
5. Caucuses is number five.
If tensions rise during a joint session, the mediator may divide the parties into different rooms for individual sessions, known as caucuses.
Confidentiality promises can entice disputants to reveal new information about their interests and concerns.
He acknowledges to the mediator, “We regret buying the new computer system in the first place.”
“There’s no way we’ll be able to cover this bill.”
When the mediator meets with your side, you explain that you are concerned that word of the failed training may negatively impact your firm’s reputation anywhere.
6. Negotiation is number six.
It’s now time to start generating ideas and proposals that address each party’s primary concerns—familiar territory for any seasoned negotiator.
The mediator can either lead the discussion in the room with all parties present.
She/He can engage in “shuttle diplomacy,”.
Traveling back and forth between the teams to gather ideas, proposals, and counter-proposals.
Professor of Law Emeritus Stephen B. Goldberg of Northwestern University advises that you seek the mediator’s help when putting up your settlement proposal.
Her talks with the opposing side have most likely provided her with information about their interests.
Assume that your discussions with the mediator have convinced everyone that your firm’s primary goal is maintaining its reputation, whereas the printing company’s primary concern is paying its debts.
In exchange, the printing company accepts responsibility for the challenging trading conditions and agrees not to publicly disparage your company.
According to Goldberg, over 80% of disagreement mediations result in a resolution.
Mediation might span a few hours or several days, weeks, or months, depending on the intricacy of the difficulties.
Some resolutions may actually be “win-win” situations.
If the parties reach an agreement, the mediator will lay out the details and maybe prepare an agreement.
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