What Is Mediation?

Mediation is a process in which two or more people involved in a dispute come together to try to work out a solution to their problem with the help of a neutral third person, called the “mediator.” The mediator is usually trained in conflict resolution, although the extent of this training can vary greatly.

Mediation is not coercive—that is, the mediator doesn’t have the power to force the parties to do anything. Nothing will be decided unless both you and the other party agree to it. However, if you do arrive at a mutual agreement, you can make it legally binding by writing the agreement in the form of an enforceable contract. (For more on how to write a mediation agreement, see Chapter 7.)

Agreeing to mediate does not mean that you give up any other legal rights. If you can’t reach an agreement in mediation, you are free to pursue other remedies, such as binding arbitration or litigation. (See Section D, below.)

1. The Goals of Mediation

The primary goal of mediation is for the parties to work out a solution they can all live with. In this sense, mediation looks to the future, not to the past. The goal is not to figure out where the truth lies or to deter­mine whether any laws have been broken, but to solve a problem. This is a far different approach than is followed in a court trial, where the judge or jury looks back to determine who was right, who was wrong, and what should be done about it.

Mediation also has some important secondary goals. Even if you cannot resolve all of your differences with the other party, you can reap these other benefits:

• improved communication with the other party

• a better understanding of the other party’s point of view

• the opportunity to meet face-to-face with the other party, speak your mind, and be heard

• increased awareness of the strengths and weaknesses of your position

• an understanding of any hidden issues or underlying problems (such as past grievances or personality clashes) that may be involved in your dispute, and

• exposure to creative ideas for settlement suggested by the mediator.

WHY NOT WORK THINGS OUT ON YOUR OWN?

Many disputes that come to mediation settle in just a few hours. In these situations, you might wonder why the parties didn’t just resolve the problem on their own, rather than bringing in a mediator. Unfortu­nately, there are often barriers that prevent people from reaching their own compromises, including an inability or unwillingness to communi­cate directly, a lack of trust in the other party, or simply not having a private, neutral place to talk things over. People who are caught up in a dispute often need help to take a step back, evaluate the arguments on both sides, and identify creative solutions to the problem.

Mediation serves an important psychological role as well. Often, before people are willing to compromise and settle, they need the chance to tell the other person (ideally, in front of a third party, who can keep the exchange civil) how hurt they are and how wronged they feel. Once these feelings are expressed (and heard by the other party), people are much more willing and able to work things out. This opportunity for what psychologists call “catharsis” explains why mediation is sometimes neces­sary before a dispute can settle—and why mediation is so often effective.

2. The Role of the Mediator

“To mediate” means “to go between” or “to be in the middle.” This, literally, is what mediators do: They go between you and the other party to help you find a solution to your dispute. The mediator’s role is not to be a judge, deciding who is right and who is wrong. Neither is it to give legal advice (even if the mediator happens to be a lawyer); nor to be a counselor or therapist. The mediator’s sole function is to bring the parties together to help them find a solution of their own making.

Exactly how the mediator does this may puzzle those who are not familiar with the process. Although each of us is, at times, a mediator— for example, department heads mediate between workers, parents mediate between children, friends mediate between friends—we prob­ably would not attempt to sit in a room with total strangers and try to help them find a solution to a problem that has vexed them for months or years.

Our reservations about trying to do this would be well-founded. Although formal mediation involves a good deal of applied common sense, it also involves a lot more than just “getting folks together to talk about their problem.” Done well, it features a mediator trained in successful conflict-resolution techniques who efficiently uses a multi­stage process to produce positive results. Employing these skills through the different stages of mediation (see Section C, below), the mediator attempts to unfreeze the parties from their fixed positions, open them to the possibilities of creative solutions, and finally guide them to a mutu­ally agreed-upon result.

In most disputes, the mediator has only the power to listen, per­suade, and inspire. These may not sound like strong tools, but a good mediator can use them creatively to help the parties improve communi­cation, look at the situation from a different perspective, and eventually arrive at their own mutually satisfactory agreement.

The mediator does this by helping the parties:

• discover any hidden issues involved in their case (people often obscure—or don’t even understand—the real problems underlying a dispute)

• understand the difference between what they want and what they need (people make certain demands in a dispute—the payment of money, cutting down a tree, or visiting children only on Tuesday— but these “wants” are not always the same as their broader needs for emotional and economic security, respect, or preservation of impor­tant relationships; once identified, needs are often easier to satisfy than wants)

• understand the wants and needs of the other side (parties may discover that some of their wants and needs overlap, which can open the door to a mutually satisfying compromise)

• realistically consider a variety of ways to settle their dispute (media­tors often generate creative resolutions, and can help the parties weigh the pros and cons of proposed terms of agreement).

B.