Comprehensive mediation guide – Mediation is a process through which two or more parties come to an agreeable resolution via a third person’s help. If you’re new to this term and don’t know how to go about it, this article will help you figure it out.
In this article, first, we will talk about mediation and mediation features, then we will describe why to choose mediation over any other arbitration processes; next, we will talk about the role of the mediator; then we will etch out the process by following which you can successfully go through mediation and reach an agreeable solution, and finally, we will discuss mediation uses in various mediation forms.
Let’s begin with what mediation is and the features.
Mediation & its characteristics
Mediation is a simple process where two or more parties voluntarily take the help of a third person to find an agreeable solution among them.
But mediation definition is not all. It would help if you delved deep to understand it better. Look at its features to get a broad picture of what it actually is.
- Voluntary: Unlike any other negotiation techniques, no one will coerce or force either party to be part of this process to reach a common solution. This is unique because it definitely takes help from a third party, but both parties become willing participants in this process. So, things become much easier.
- Empathy: In the case of mediation, the primary concern is empathy for each other instead of having a rift between parties. Even if there may be little or no empathy at the beginning of the mediation process, once the mediator takes things into his/her own hands, things improve. And instead of fighting over their concerns, each party tries to understand each other and puts effort to come to a mutual solution.
- Facilitation: Most of the negotiation processes involve command or coercion. But in the case of mediation, it’s not so. A mediator doesn’t command or direct the parties to a solution u rather facilitates the process. It’s much smarter as due to facilitation, the parties can understand each other well, comes together, and instead of fighting against each other, they work together to find a solution. So it can be said that it is a much smarter approach than any other mediation negotiation techniques.
- Solves issues of great magnitude: As mediation is a process where voluntary participation is encouraged and facilitation is practised, it can solve any great magnitude issues without any hazards. When two or more parties cannot decide what to do, and at the same time, don’t want to compromise their privacy, they choose the mediation process. They pick a mediator who has proper mediation skills, mediation training and mediation experience and asks to mediate the process for a fee. Thus, the mediation process becomes easier and doesn’t need a mediation court to interfere with the parties’ diverse interests.
- Works for every sort of agreement: Big part of it is that mediation works for every situation. It can be a personal conflict like a premarital agreement, or it can be professional, like business to customers or business to a business agreement. Mediation is a boon for people who are always in the process of mitigating something. Just appoint a capable mediator and solve the issue.
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Why choose mediation over any other arbitration processes?
There are many reasons why the parties choose mediation over any other negotiation techniques. Have a close look at the below pointers to get an idea about why it is so popular and why you should choose mediation if you feel the need to reach a mediation resolution.
- Cost-effective: Even when we may say that cost doesn’t matter, only solution matters; cost is the sole differentiator of any business or personal happiness. If a business wants to increase profits, its emphasis should always be on cost reduction. In personal life, no one would like to spend a lot of money to find a solution that is not solvable among parties. Then what’s the alternative? It would help if you went to mediation. Yes, in this, you need to pay a fee to the professional mediator, but if you combine all the costs, you need to bear in other negotiation processes. Without any doubt, mediation is the most cost-effective way to ensure the desired solution for each party. Imagine going to the court, paying the mediation fees of advocates for each mediation session and other ancillary charges for things to move on and combine the expenses and compare with the mediation cost. You would understand the significant difference in cost.
- Confidentiality: How would you feel when your private affairs are discussed in court or elsewhere, and you are a silent audience in the crowd? You won’t like it. But what’s the solution? Mediation is the solution. It would keep your confidentiality intact. Only people who would know about the issue will be the parties involved in the resolution process and only a mediator who will facilitate the whole thing. Which is better? If you would like to have confidentiality, then you must pick mediation or arbitration processes.
- Control: In the courtroom or elsewhere, the parties’ control over the agreement or solution is bleak. The judges, advocates or significant others will decide as representatives of parties, but there is no or much lesser control. Whereas in mediation, the parties have direct control over the things they want to discuss and can decide which is the right or empathetic way of looking at it. It’s not judging the judges or the advocates’ capability, but it’s all about taking things into your own hands instead of allowing others to dictate terms. So, if you want more control, pick mediation.
- Compliance: If you have seen any court case, you would see that most of the time, the compliance is deficient; people maintain the law of order because they have to. In mediation, the mediator facilitates, and the parties mutually and empathetically decide on an agreeable solution. Thus the chances of compliance are much higher. At the outset, we mentioned that the process of mediation is voluntary. That means the parties want to come together for an agreeable solution. Usually, they come to decide upon what will be the ideal solution for both/all of them after taking the help of a mediator. So compliance is more, and complaints are less.
- Mutuality: In mediation, parties not only come voluntarily to sit for the solution; they work mutually to reach the solution. The difference between other negotiation processes and mediation is it’s mutual, and instead of working against each other, they work toward a common goal. For example, take an organization and its people. They work as a team to come to an agreeable solution that is mutually beneficial both for the people and the organization. A similar approach is taken here. Two or more parties work together for achieving a common goal and not against each other.
- Support: In mediation, you get direct support from the mediator. S/he is appointed directly to facilitate. And with his/her professional skills, mediation techniques, and mediation tactics, s/he helps solve the problem. S/he offers various mediation solutions and encourages each party to think beyond the conventions and develop alternative ideas that help each other. Imagine it as a brainstorming session where the employees can find a solution for a tough problem. The company president helps them, supports them, and encourages them to find out the best ones for an agreeable and sustainable solution. In mediation, each party gets the same support from the mediator and thus, finding a mutually beneficial solution becomes much easier.
Role of the Mediator
The role of the mediator cannot be under emphasized. It’s a huge role and a great responsibility. Once the mediator is appointed and the mediation begins, s/he does the following things.
- Introducer: The mediator introduces the process and helps the issues get clear first to the mediation parties. Then s/he tells his/her role as a facilitator.
- Facilitator: The primary responsibility of the mediator is to facilitate the process. The purpose of facilitation is to create empathy for each other, repeatedly remind why the parties have come together, and help produce new, ‘out of the box’ ideas.
- Encourager: The mediator also plays the role of encourager and acts as the biggest support each party needs during the mediation process.
- Unbiased negotiator: The mediator needs to be honest, ethical and strong in character. If not, s/he can be biased and can agree to a particular party’s trick. S/he needs to be neutral and listens to everyone and, with everyone’s voluntary support, decides upon the final conclusion.
- Manager: Finally, a mediator has to act as a manager. S/he needs to manage all of the parties to have less chaos and ambiguity and more clarity and discussion toward the desired outcome.
Process of Mediation
It’s an easy process, but depending on the magnitude of the issue, it takes time to resolve. Let’s look at each part of the process in the actual sequence.
- Start: All the parties and the mediator meet at a place where the mediation would be done, and then the whole process begins. The mediator introduces each party and asks them to begin.
- Opening by the parties: Once the parties get the mediator’s signal, they start the proceedings. The mediator asks the parties to present the issues first, and then the discussion carries on.
- Summary and agenda: After the introduction, the mediator asks the parties to present a summary and agenda of what they will discuss. It should be short, precise and only talk about relevant issues. Ambiguity and other things which are unrelated to the issue should be avoided.
- Problems, needs and interests analysis: After briefly describing the agenda and the summary of issues, it’s time to go deep. At this stage of mediation, the mediator detects the problems and finds out each party’s needs for which they’ve voluntarily come together and analyse the importance of the interest for each party. The parties are also involved in the process. Once this is done, the most important step of the process arises.
- “Caucus” sessions: This is the most important part of the whole mediation process because each party gets the opportunity to discuss their issues privately. It’s defined as ‘caucus’ sessions. After this part, only alternative solutions are generated.
- Options generation: After the joint private sessions, it’s time to solve the problem. The best way to solve a problem is to gather ideas that may or may not be a good fit. But at this stage of mediation, the mediator facilitates getting new ideas from parties so that there can be a negotiation for reaching the desired solution without hurting each party’s interest.
- Assisted negotiation: Once the ideas are gathered, it’s time for parties to negotiate on the options. Of course, the mediator will be involved in the process. And s/he will make sure that each party talks sense and don’t negotiate based on unrelated events or circumstances.
- Settlement and agreement: Once the negotiation is done, it’s time to close the process of mediation. At this part, the best alternative is found and agreed upon and then an official agreement is signed.
Uses of mediation
Mediation can be used in all facets of negotiations. This last section will discuss the types and uses of mediation and where it can be used.
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- Business to Business: It’s a common theme of most of the negotiation, and each party chooses the mediation process over any other negotiation techniques as they have more control in mediation.
- Business to Customers: If customers are not satisfied with the business dealings or vice versa, they opt for mediation.
- Business to Employees: Always, all organizations don’t think about employees’ well-being or vice versa. Then there is only one option is left, and that is to go for mediation.
- Personal affairs: Even in all personal affairs where the agreement needs to be mutual, mediation is chosen to deal with the differences between parties.
This is a comprehensive mediation guide. If you read this well, the fundamentals of mediation would be clear. But the best way to understand mediation is always to be part of it. If you can use this process, you would get to know how mediation works.
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