While some proponents argue that mediation is suitable for any dispute and that what needs to be modified to address the unique aspects of each dispute is the mediation protocol, others say that mediation is not a panacea. They propose that for each dispute, there must be an assessment of the dispute and the disputants for the purpose of selecting the most appropriate dispute resolution process.
The following review of processes defines the different processes that are available and considers the pros and cons of each. The most suitable process choice may be a combination of processes used together or consecutively.It is essential to regularly review the appropriateness of a dispute resolution process as its usefulness can and does change over time.
Mediation is well-suited to disputes where the disputants want a quick resolution that meets their needs, that they craft, that is private, and that supports ongoing relationships. To succeed in mediation, disputants must be willing to accept the assistance of the mediator, motivated to negotiate with each other and hold realistic outcome expectations. There must be enough information and data available to make decisions, or to develop formulas to address future events, yet there need not be full disclosure of all information.
Some disputes are not suited to mediation. The dispute may be over principles that go beyond the disputants, and that call for a public decision, such as a drug that has dangerous side effects. Other disputes may appear to be at a stalemate that can only be resolved by a judge. For example, when the dispute is a single issue - Will the defendant pay, or not?
- negotiations tend to become mired, unless other issues can be uncovered, such as When will payment take place? What form will payment take?
or other interests can be met, including a desire to receive a sincere apology. Similarly, when trust is low, relevant information is being withheld or there exists a significant power imbalance, disputants may prefer another dispute resolution process, unless the mediation process can be varied to address the lack of trust, to rely on the rules of information disclosure in the formal court process or to balance power. Keep in mind that the appropriateness of mediation varies with time. A dispute that does not appear to be appropriate for mediation today, may be well-suited for mediation tomorrow.
This chapter discusses issues that affect suitability for mediation and provides a Mediation Suitability checklist. Public interest disputes, such as criminal charges, child protection interventions and professional discipline matters, raise additional considerations about whether a dispute should be mediated. They are discussed separately and have their own checklist. Although one disputant may decide that mediation is suitable at this time, other disputants may be reluctant to come the table. Suggestions for engaging other disputants are provided.
At first blush, determining who needs to be involved in the mediation process seems straightforward – each of the disputants. However, this is only part of the answer. Who participates and the manner of their participation will shape the durability and the content of settlements. This chapter will discuss who needs to be involved, why, and in what capacity. The pros and cons of involving certain participants will be reviewed. A Participant Checklist as well as practice tips are provided.
There is a distinction between disputant and participant. For the purposes of this book, disputant is the person or entity that has the legal right to make a decision that is binding on that person or entity. If a court action has been commenced, disputant is synonymous with party and with plaintiff, claimant or defendant. Participant includes disputants and is the wider group of people that may take part in a mediation. The involvement of participants may be total or partial, including:
- presence at the mediation venue without entering the meeting room,
- attendance at a preliminary conference but not the joint mediation meeting,
- participation for a specified, often limited function, during the joint mediation meeting, or
- full participation throughout the joint meeting.
Knowledge about measures that are effective to resolve disputes has expanded exponentially in recent years. Generally, the longer a dispute is left unresolved, the more intractable it becomes. When people are brought together in an environment that fosters respect and encourages mutual understanding, the likelihood of resolving their dispute increases dramatically. For these reasons, many courts, public organizations and private entities have established dispute resolution systems that include mediation as one, early stage within a larger system.
When the decision to mediate is made privately, disputants or their lawyers, a mediation service or the mediator will, individually or collectively, make and implement decisions to schedule the mediation meetings. When mediation is court-connected or sanctioned by legislation, an administrator who follows pre-determined procedures attends to the administrative details of scheduling the mediation. This chapter approaches administrative details from these two perspectives. Two checklists are provided: Date and Duration; and Location. The chapter concludes with two Tips that emphasize the importance of the manner in which convening decisions are made and a practical Tip for telephone meetings.
The pre-determined and usually mandatory procedural nature of court-connected or publicly sanctioned mediations limit choices, such as where and when to mediate. At the same time, when mediation is mandatory, commencing an action or instigating a formal complaint process may be the only way to bring a reluctant participant to the mediation table. Alternatively, disputants may hope to avoid the public nature of litigation. They may prefer to have control over when mediation occurs, how it is conducted and who mediates. In these situations, they may make a strategic choice to mediate their dispute prior to commencing an action or to initiating a publicly sanctioned process.
Unlike professions such as medicine, dentistry or law, there is no licensing body that sets and enforces standards of practice for mediators. Literally anyone can mediate. It is the disputants who decide whether or not a mediator is right for their dispute.
In such an open marketplace selecting the right mediator can be challenging. Experience, training, and aptitude may be important but other attributes, such as gender or demeanor may also be critical. The detailed checklist at the end of this chapter lists questions to consider when choosing a mediator. It also encourages the user to rank the selection criteria thereby identifying mediator qualities that are essential to their dispute.
The selection of the mediator can be a significant obstacle in getting on with the mediation. Some disputants may purposely avoid or dispute the selection of the mediator when they believe that it is in their interests to delay the mediation. In some jurisdictions, there is legislation or rules of court that govern mediator selection, thereby overcoming purposeful delay. Often there is no formal protocol. Just like the determination of the mediation venue, the process by which the mediator is chosen can impact the mediation in a constructive or not so constructive manner. As discussed in Chapter 4, when the selection is imposed by one of the disputants, there is the risk that there will be resentment over the use of power that will be carried into the mediation. And, if a third party makes the selection arbitrarily, the disputants miss the opportunity to practice key skills and reach agreement consensually.
This chapter reviews mediator training and certification. It describes different mediation models that mediators use. Various ways in which mediators are selected, and the perspectives of those who choose, are reviewed.
Making an effort to think about the dispute objectively allows disputants:
- to identify areas of agreement,
- to create a list of issues to be resolved at the mediation,
- to uncover misunderstandings and missing information and to develop hunches about why the dispute remains unresolved.
Doing so tends to reduce anxiety about the dispute. Often the steps to take to resolve the dispute are clearer following the analysis.
This chapter provides a framework that can be utilized to analyze the dispute. It lists some psychological traps that humans are susceptible to when they are problem solving. There is a Dispute Analysis checklist as well as tips for analyzing a dispute at the end of the chapter.
There is no single optimal response to conflict. At the same time, there are key communication skills and behaviors that are more likely to lead to successful participation in mediation. These include dealing with the person with whom you are in conflict by:
- externalizing the problem by describing it as one that is between you, without blaming either person,
- listening carefully, summarizing and checking out what is heard before responding,
- suspending judgment and avoiding labeling, name calling, making threats, and acting defensively,
- being non-defensive and non-reactive as you are listening in an effort to understand the other person’s perspective,
- stating clearly what you want and what your interests and objectives are,
- working through the disagreement constructively by following the step by step lead of the mediator,
- being firm about achieving a mutual solution.
This chapter will review active listening and effective communication skills. It will suggest how to become more proficient in their use. Practical tips for implementing communication skills are also given at the conclusion of the chapter.
Guideposts give direction. In the context of disputes, interests and goals are signs that point towards the solution. When your interests and objectives are addressed and the outcome is consistent with your goals, you experience resolution of the conflict. There are occasions when action must be taken in response to events that have not yet occurred. Guidelines provide meaningful parameters in these situations.
This chapter will define what interests and objectives are, with a checklist provided for uncovering the particular interests and objectives involved. There are guidelines for how decisions will be made when agreements are being carried out or how changes are put in place for a project. The importance of identifying goals will be reviewed. A second checklist sets out questions to consider when setting goals in various types of disputes. Useful tips are found at the end of the chapter.
Failure to gather the necessary data before mediation is like setting out on a journey without a map. Although you may arrive at your destination, it is unlikely that you will have taken the most direct route. The task of gathering data and information is pragmatic. There must be enough information to make decisions. At the same time, the gathering of information need not unduly delay resolution nor significantly increase costs; it is unlikely that 100% of the data can or should be assembled. Disputants, with the assistance of their lawyers, need to determine how much data they require at what cost of time and money. They need to answer the question: What data is necessary to make decisions?
Mediators often assist disputants to determine what data they will need. Both lawyers and disputants are involved in gathering data and information. Lawyers will apply a legal analysis to the facts. This chapter reviews the types of data and information that may be useful to gather, including a Data and Information checklist. There is also a Risk Analysis checklist to facilitate the legal analysis, to identify settlement parameters and to clarify the costs of not settling at mediation. Chapter 8 concludes with tips for gathering and sharing data and information.
Mediation is a flexible process, it is not subject to rigid rules of procedure. Consequently, disputants and their lawyers can tailor the mediation process to meet their specific needs.
This chapter outlines the procedural guidelines that can govern the mediation. Various ground rules to facilitate and support negotiations among the disputants are examined. Ways of dealing with any limitations to the authority to settle the matter at the joint mediation meeting are listed. Agreements to Mediate are reviewed and a detailed list of clauses that can be included in such an agreement is provided in a checklist.
Although the practice of holding pre-mediation meetings or preliminary conferences is relatively new, researchers are finding that both the likelihood of resolution and satisfaction are significantly increased in those disputes where preliminary conferences are held. From the perspective of disputants, preliminary conferences provide opportunities to reduce disputant trepidation by meeting the mediator, learning about the process and understanding what their role will be.
This chapter describes preliminary conferences and reviews the purposes for holding them. The Preliminary Conference checklist raises issues to consider when planning the conference.