Mediation can be an emotion-packed event for all participants involved (hopefully not the mediator!). As a mediator, I am between two or more participants, usually experienced business people, often parents, and yet they are behaving like “kids in the playground”: each dedicated to proving they are “right”. In an emotional battlefield, I am the referee, counsellor and facilitator. It’s a challenge.
Bracketing is becoming a popular strategy in mediation. Whilst mediation is sometimes considered less developed here in the UK, the Americans have spent many years perfecting negotiation strategies involved in mediation and alternative dispute resolution. We often find that US techniques find their way over here, with modifications to suit our own practices.
there are times when cases simply can’t, don’t or won’t settle. Either the issues are too complex and disputed, or one side or the other simply isn’t willing to budge. Sometimes unfortunately, one side chooses not to engage or seek a settlement just for “sport”.
Sometimes, solicitors or participants hold back information from opposing counsel (and the mediator), thinking they hold back their ace until the last minute. Often, this backfires and involves more time and money being spent. Withholding important case information and evidence is seldom advisable.
Many people entering into their first mediation often wonder what they need to bring. The role of the mediator is to help the participants find a solution they can both live with. To do this, the mediator needs to know everything relevant.
Emotion is the downfall of many disputes. One side feels they deserve it all and the other side feels they should give nothing. This is a destructive emotional response that impedes a satisfactory settlement. When evaluating your case, it is important to try and put emotion aside and look at things clearly. A judge hearing your case will have to look at the case objectively and neutrally under the law.
This second article in the Preparing for Mediation series focuses on creating the right mindset for going into mediation. Having the right mindset is critical for success. Without this even the most expert mediator will have trouble moving the parties together.
The first topic I would like to address is the position statement that the participants or their solicitors prepare and send to the mediator well before the mediation meeting. This will usually contain materials and a case summary to allow the mediator to get familiar with the facts (and opinions) of the case.
When trying to select the right mediator for your dispute, it can be difficult to decide. What should you look for? How can you determine the mediator’s reputation and history of success? Often, a good mediation result lies in the personal qualities of the mediator.
Mediators are experts in many things: listening, easing tensions, reconciliation, and communication. The mediator must be a paragon of objectivity and impartiality. While he or she may ultimately have an opinion with regard to the merits of each side’s case, the mediator must approach those opinions with the utmost objectivity and recognise that both sides of the matter have merit for the individuals involved.
