How Mediation Works
A true mediation gives people the opportunity to
share how they got to the point of unresolved conflict and what they
need in order to resolve it. Mediation is based on a theory call the "Interest-Based
Relational (IBR) Approach". This conflict resolution
strategy respects individual differences while helping
people avoid becoming
too entrenched in a fixed position.
That being said, its time to put legs on the theory. I use the following agenda when I introduce mediation to participants in a mediation session:
Mediation Agenda
A Guide for Participants
I.
Introduction
a. Facility
b. Special
Needs
c. Background,
Neutrality and Conflicts
d. Rules
and Roles
e. Caucus
f. Authority
to Settle
g. Future
Focus
h. Agreement
to Mediate
Comment: In the first part, I make sure that everyone is comfortable with the facility, knows where the bathrooms are, coffee, caucus rooms, things like that, so participants are familiar with the facility. Then, I check for potential conflicts, emphasizing how important it is that I maintain neutrality. We review the our respective roles: participants will sincerely participate, the process is voluntary, I am there to facilitate the participants agreement, and their attorneys, if present, are non-adversarial legal advisers; and rules: mutual respect and active listening. The decision makers should be at the table or accessible. Caucus is a chance to break out of the mediation for private conversations. The mediation must focus on the future - blame for the past doesn't matter. Finally, we review and sign our mediation agreement.
II.
Information
Gathering
a. Tell
your story – why are you hear? – what do you hope to accomplish?
b. Your
attorneys (if present) contribute addition information
c. Prioritize
Issues
d. Identify
areas of agreement
Comment: Each participant gets the opportunity to tell why they are in the mediation and what they hope to accomplish by mediating an agreement. Their attorneys are then asked to add areas that have not been brought up. The goal of this portion of the process is to learn enough about the situation to be able to identify the key issues that must be resolved, prioritize them, and then be sure to identify areas on which we already have agreements.
III.
Problem
Solving
a. Brainstorm
solutions to issues
i.
No evaluating or criticizing
ii.
Remember that even bad ideas can lead to good ideas
b. Discuss
solutions
c. Identify
associated concerns
d. Evaluate
possible solutions and determine what will work
i.
Dig out details to insure success
Comment: This is the most exciting part of the mediation. If we have really identified the issues, the participants usually start to be able to come up with their own solutions. The energy in the room picks up at this point and sometimes it is so palpable you can ride it like a surfer rides a wave. By the time you reach the shore, you have the raw materials for an agreement. The artistry continues in the next section.
IV.
Create
Memorandum of Understanding/Agreement
a. Purpose:
i.
Provides closure
ii.
Memorializes agreement
iii.
Identifies any areas not yet agreed upon
b. This
memorandum is between the parties
c. Subject
to approval by attorneys
d. Should
be:
i.
Specific
ii.
Emphasize positive action by the parties
iii.
Accurately relates parties words and intentions
iv.
Provides for the future
v.
Is even handed and not conditional
Comment: From the raw materials in gathered in the brainstorming session, the participants craft together a final agreement that resolves all their issues. This is, or course, why we have to have voluntary full disclosure, so that the participants are certain that the agreement covers all their concerns. If it does, the process has worked as it should.
Congratulations – You have successfully mediated an
agreement!
There are three guiding principles here: Be Calm, Be
Patient,
Have Respect for one another.
Please call us for more information at 865-357-1949 or email us at rlvmediates@gmail.com