Mervyn Malamed breaks it down.
Mervyn comprehensively unpacks the whys and wherefores – not to mention the who, what, how, when and where of Mediation.
Why Mediation? There’s basically no real downside, minimal risk, and the upside of course, is acceptable settlement.
Mediation is voluntarily – anyone can opt out at any time for any reason, or for no reason at all.
It is non-binding: you don’t form agreements unless you want to (and you can always fall back on litigation or arbitration).
Being informal, Mediation preserves relationships and avoids bad publicity. Discussions can be as free as the parties would like them to be – no content can be used as evidence at a later stage.
Unlike arbitration, the disputants control the outcome – not a third party.
A Mediator is a catalyst for a collaborative approach to brainstorm and ultimately generate creative solutions.
What is revealed and ‘put on the table’ by the parties is like the visible caps of an iceberg. The underlying interests are below the water – to be explored and discovered as common ground, shared interests, and ‘trade-ables’.
The Mediator receives information privately where concerns, weaknesses, strengths, and underlying interests are disclosed. These confidentialities are not available to the other side but do provide the Mediator with a big picture overview. Fresh eyes identify commonalities, the endgame being to activate thinking and creativity, leaving no value on the table.
The cost is minimal and the disputants will have structured a bespoke solution.
Mediators are objective professionals – not only independent and neutral but perceived to be neutral. They facilitate face to face caucusing: private sessions where each party can discuss their issues in confidence. The effectiveness of Mediation depends on frankness: the needs, fears, underlying interests, reservations, bottom lines and options of each party must become known to the Mediator.
Nothing gets ‘heard’ by the other party without explicit permission: each party can ‘lay everything on the table’ freely and openly discuss necessities, negotiables, restrictions, or desirables.
The Mediator accesses the ‘agenda’ of both sides from an impartial standpoint, reframing matters within the big picture with the needs and interests of both parties in mind.
The Mediator will propose “what ifs” to reality test assumptions; delving into issues to find ways of bringing the parties together. Settlement is usually the culmination of several small trades and concessions all wrapped up in a final agreement.
So you have a conflict crisis. When is the right time to call in a Mediator? As soon as possible after negotiations fail. Mediation rather than legal action should be the next step – the quickest and less costly choice. The minute the first shot is fired you’ve entered the ‘Zone of Escalation’ where the conflict takes on a life of its own and intensifies escalates the original dispute, becoming more difficult to control or budget for. Conflict that is complicated by multiple issues triggers further wastes of time, distraction, and expenditure.
Mediation is increasingly being done online through sophisticated and secure video conferencing resources. Getting all parties, possibly their attorneys, and a Mediator together in one place at the same time is challenging and potentially expensive. It is being referred to as the “convening penalty”.
Online Mediation functions in much the same way as ‘live’ Mediation, except that the parties can be scattered across the globe. There is synchronous online Mediation where all parties are present simultaneously. There is also asynchronous online Mediation – where participants can clock in at times that work for them. It can, and usually is, a combination of the two, together with other communications that suit the situation, like email or the telephone. This provides the disputants with a host of options to make the experience as efficient and cost-effective as possible.
The Mediator should be highly trained with a good grounding in dispute settlement, conflict theory and conflict management – with plenty ‘street-smarts’. With years of experience in business, and subsequent training, I have just that. Together with my post-grad Dispute Settlement studies from Stellenbosch University, South Africa, I am an accredited CEDR Mediator (Center for Effective Dispute Resolution, London), qualified to conduct psychometric testing of conflict behavior, a certified trainer of several top conflict management training courses, and have also created my own comprehensive training course. My work aims to save people time, stress, and money.
My real success is in settling matters collaboratively through Mediation.