The principle of mediation is to offer the parties an opportunity to create or evolve their own solutions instead of relying on a third party to pass a judgment as to who is right and who is wrong. Mediation is thus a facilitated negotiation.
The mediator may by himself facilitate the process by suggesting the probable feasible solutions or proposals, which the parties may opt for as a solution but the mediator cannot impose the same upon the parties under any circumstances. The parties are required to put forward a statement of facts and the proceeding’s summary to the mediator before the mediation procedure starts.
The most crucial element of any event, work, project, or task is preparation before starting off anything. As a mediator, one is ready with all the facts, the arguments, and the laws to put at the desk. And why not, preparation comes as a part of the conduct of any professional. One thing often overlooked- is preparing the CLIENT for the process.
Preparation only makes any dispute resolution successful. Clients will simply do better when there is preparation. So, in this article, we will look into how to prepare for mediation.
I. Ensuring the client perceives the mediation process well
In order to prepare your client for the process, the client should have knowledge of the vital role of the mediator. The client needs to have clarity on what mediation entails. Unlike a counseling session or a court proceeding, mediation is basically a negotiation conducted by an unbiased third party.
The mediator needs to ensure the client that he is merely a facilitator. The mediator is there to only fill in the gaps between negotiating parties with a neutral opinion. The final decision is mutually agreeable by the parties in conflict.
II. What laws are applicable to the client’s case
The clients may already know the relevant laws, the mediator can save time on explaining them during the mediation process. If the client is aware of his rights and duties before sitting for mediation, considering proposals become easier.
The mediator should also explain to the client that there is no compulsion to sign any sort of binding agreement. The client should consult their counselor before signing any document. The laws are firm and so must be carefully regarded.
III. Preparing the client to handle emotional replies
The history of any dispute aligns with emotional baggage. And the notion that emotion is a major part of any decision one makes is welcome. Further, emotional baggage is totally fine until it starts to affect the decision rationally. As far as mediation is concerned, where the clients decide for themselves, any negative emotion can be reflected- as it becomes harder to reach an accord. Take, for instance, a divorce or a child custody case, people would definitely work out conclusions according to their emotional demands.
If the circumstances require, expose your clients to mental health coaches to deal with sensitive issues, as lawyers/ mediators are not psychologists per se. This will even clear the foggy minds of clients and make them decide with confidence.
You can even prepare your client to calm down in order to avoid impulsive emotional decisions. Normalizing simple exercises like breathing or taking a short break. Working with the client to make signature gestures with hand or a signal with the eye. The mediator can use it to regulate any losing end in the mediation process. In a nutshell, prepare your client to negotiate rationally by adding a few smart tips.
IV. Anticipate your client’s BATNA
In Roger Fisher and William Ury’s seminal work, Getting to Yes: Negotiating Without Giving In, Fisher and Ury coined the phrase “Best Alternative to a Negotiated Agreement” (BATNA for short).
Because the mediation process is interest-driven, you need to focus on identifying the underlying motivation for each goal. This helps your client manage expectations. If your client has something tangible that explains the possible outcomes, they can make a more informed decision.
A strong BATNA strengthens the decision-making process. Prepare your client not to have an overoptimistic BATNA. Believe in the right amount of realistic behavior.
V. Finding out the client’s fears and working to alleviate the same
Your client may be facing a seating such as mediation for the first time or under severe pressure. There is an obligation on part of the mediator that the client feels confident and end all their hesitation. Therefore, its positive to encourage clients.
Mediation affords the clients the opportunity to state their case and push for their interests. Compare the option of mediation to a trial where they’d have little to no control.
VI. Get your client to make a good business decision
Assisting clients to look for an agreement that is easy to cope with, over an agreement that will only yield a theoretical sense of fairness. The definition of fairness is subjective. Deals are not always perfect and absolutely favorable. But as a mediator, if you really want your client to stay out of court, it may just have to be good enough.
Clients should be able to incorporate this perspective in their decision-making.
VII. The importance of a realistic proposal
Clients must be prepared to put forward some realistic proposals. Mediation is not about an atmosphere where you intend to bring down the demands of the other party. Rather, it is about integrating ideas and demands of both sides.
Even negotiating for extreme demands from both sides doesn’t work out to make a conclusion. The matter, in such circumstances, tends to go to the court for a grueling process. So, favoring a fair deal by making a realistic proposal is required, and the concerned mediator is responsible to prepare his client for the same.
The entire process of mediation is a success when we keep some things in mind. Making the right choices and adequate amount of preparation of the client will definitely benefit the mediation process and its outcome.
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