Flexible Process

A Flexible Process

Mediation requires a sequenced framework for success. While the process is conceptually straight-forward, the challenge lies in keeping the ground rules fresh in the minds of the parties throughout the Mediation to prevent them from taking the discussion outside the bounds of civility.

One of the Mediator’s goals as “guardian of the dispute resolution process” is to ensure the safety and comfort of the parties throughout the process of Mediation. This means that the Mediator can and should tailor each part of the process to the needs of the parties. If they need to be in separate rooms, the Mediator should facilitate that; if they need to change the pace of the discussion, the Mediator should manage that; if they need very short Mediation sessions to reduce the stress level, or if they prefer the sessions very long to get to a resolution quickly, the Mediator should arrange that. This is one of the benefits of Mediation: the parties, with the assistance of the Mediator, control the process.

 

General Process Outline

The following is a general outline of how a typical Mediation might flow:

First, the Mediator meets with each party individually in a “Pre-Mediation”. This allows each party equal time with the Mediator to outline his or her perspectives of the issues. The Mediator explains the ground rules of the process and secures each party’s commitment to those rules. Also at this stage, the Mediator begins an assessment of the relationship between the parties, partly to determine whether Mediation is an appropriate process for them and partly to determine how to best keep the parties on track during Mediation.

Once the parties are ready for a Mediation session, they can meet with the Mediator together. The Mediator’s challenge is to take the “positions” of the parties, which are often irreconcilable, and translate them into “interests” which are often complementary, or in some cases, even mutual. This artful process eventually allows for solution-building.

Mediation Process Fundamentals

Once interests have been exposed and explored sufficiently, the Mediator asks the parties to brainstorm solutions which address the complementary or mutual interests.

Once all possible solutions are on the table, the parties assess and reality-check them for feasibility. The best solutions rise to the top and after some refinement, form the basis of an agreement. Any agreements are papered in the form of a Memorandum of Understanding, or a more detailed Agreement, if the parties wish.

Each party then secures independent legal advice from a lawyer (NOT from the Mediator) to assess the fairness and legal consequences of the terms agreed to in Mediation. Should any problems arise with the terms of any agreement, the parties can address these with further Mediation or through their lawyers, depending on the situation.

 
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