What is Mediation? What Can I Expect?

What is Mediation?

How do I know what to expect in mediation.                             

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While medi­a­tion is becom­ing more com­mon, most peo­ple who have not actu­ally par­tic­i­pated in a medi­a­tion still have no idea what it is.  Mediation is often con­fused with arbi­tra­tion.  Clients expect that they will meet with some­one who will, at best, help them con­vince the other party to give them what they want or, at a min­i­mum, make a deci­sion for them about the out­come, i.e. tell them what they should do.  So clients usu­ally believe that the best way to be suc­cess­ful in the process is to con­vince the medi­a­tor that their side of the story and what they want is right.  But going into medi­a­tion with these expec­ta­tions will make the expe­ri­ence frustrating. 

Different Approaches

There is no sin­gle approach to medi­a­tion. What one medi­a­tor may do in the room can end up look­ing VERY dif­fer­ent from another mediator’s approach.  In fact, what one medi­a­tor does with dif­fer­ent clients can vary depend­ing on the type of case and the facts of the case.   

While there is some con­sis­tency amongst medi­a­tion edu­ca­tion pro­grams, not all medi­a­tors have the same back­ground, edu­ca­tion and train­ing.  Some medi­a­tors have received their train­ing through law school medi­a­tion courses.  Some are lawyers or judges who have been in prac­tice for many years and went to law school before medi­a­tion was ever part of the cur­ricu­lum.  They may or may not have taken post degree pri­vate courses in medi­a­tion, rang­ing from one to five days, or may or may not have com­pleted a medi­a­tion degree pro­gram through a uni­ver­sity. Then there are non-​​lawyer medi­a­tors who may have come from a coun­sel­ing back­ground, or may have received some kind of inter­dis­ci­pli­nary degree in con­flict res­o­lu­tion.  At this time, there is no licens­ing require­ment in most states for hold­ing one­self out as a medi­a­tor. 

Finally, there are vast dif­fer­ences in medi­a­tion approaches that are taught in medi­a­tion train­ing pro­grams. You may have heard terms bandied about such as “facil­i­ta­tive” ver­sus “eval­u­a­tive” ver­sus “trans­for­ma­tive” medi­a­tion.  These terms are often mean­ing­less to clients, and some­times even to medi­a­tors who are sup­posed to know what they mean.  Approaches used often depend on what kind of case is being medi­ated.  Personal injury and employ­ment cases almost always will include attor­neys in the room.  Depending on the medi­a­tor, the attor­ney may do all or most of the talk­ing for the client, or the attor­ney may just sit in as an advi­sor for the client who speaks for him/​herself. In these kinds of cases medi­a­tors may be cho­sen specif­i­cally to engage in a more eval­u­a­tive approach.  In divorce or other fam­ily law cases (includ­ing pro­bate) par­ties usu­ally attend medi­a­tion ses­sions with­out their attor­neys, and medi­a­tors are more likely to take a facil­i­ta­tive and/​or trans­for­ma­tive approach.  

I like to say that medi­a­tion is a con­tin­uum of dis­pute res­o­lu­tion processes.  It is a tool box that a knowl­edge­able and skill­ful medi­a­tor can pick and choose from depend­ing on the kind of case that is involved, the indi­vid­ual facts of the case, and what the par­ties want and need.  I have found though the years, that this view is by far the most com­mon amongst expe­ri­enced medi­a­tors.  Therefore, the best place to begin is to make sure that YOU under­stand what kind of medi­a­tion is tak­ing place, what approach the par­tic­u­lar medi­a­tor you are uti­liz­ing will take, and what will work best for your client’s situation.  

 What to Expect?  Common Features of Mediation

So, given all this, how do you know what to expect in medi­a­tion?   

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There are two fea­tures that should be present in all medi­a­tions.  First, medi­a­tion is com­pletely vol­un­tary and a client should be advised that it is his or her deci­sion whether or not to par­tic­i­pate in medi­a­tion, and whether or not to end the medi­a­tion and/​or reach an agree­ment in that process.  Mediation is best defined as a process in which an impar­tial facil­i­ta­tor assists two or more par­ties to reach a mutu­ally agree­able res­o­lu­tion of the con­tro­versy.  A good medi­a­tor encour­ages and helps each party to make their own deci­sions regard­ing the process and the terms under which to resolve the controversy.  

 Secondly, the beauty of medi­a­tion is that the par­ties get to decide what is on the table for dis­cus­sion and what options for res­o­lu­tion can be con­sid­ered.  They are not bound by what they can or can­not legally get in court.  In fact, medi­a­tion allows par­ties to talk about what they really want or need in order to walk away feel­ing like their posi­tion was heard and acknowl­edged.  Sometimes that means that a sin­cere apol­ogy or agree­ment to take steps to learn how to change future behav­ior might be a more sat­is­fy­ing term to a set­tle­ment agreement. 

 

 

 

Posted in Choosing a Mediator, Divorce & Child Custody, Family Conflict, Mediation Tagged with: , , , , ,

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