HOW DOES MEDIATION WORK?
Mediation works by assigning a trained and independent person to view the ‘big picture’ from an objective and completely fresh point of view.
Mediation makes all resources available.
Using an iceberg analogy, counterparts generally see what is ‘above the water’ only. Those are “positions” – A’s position might be black and B’s position white. With only that to work with, it is almost impossible to explore solutions. What lies beneath is usually a wealth of needs, interests, wants and concerns: frequently information that a disputant has never even thought about as possibilities worth exploring. Mediation works by allowing all resources and concerns to be a part of the solution.
Mediation has advantages over negotiation.
Accessing these resources is difficult between negotiators. Legitimate concerns about exposing weaknesses, strategy, bottom-lines, or ‘trump cards’ block dialogue.
Active listening is an important part of the process. It encourages ‘venting’ which gives an accurate if not more balanced perspective that may result in more understanding of a disputant’s concerns, fears, or assumptions. Venting also serves to isolate that which is essential to reaching agreement from the many ‘non-key’ (often emotional) issues that stand in the way of consensus.
Mediation is strictly confidential and private.
This allows each party to freely ‘lay everything on the table’ and openly discuss necessities, negotiables, restrictions, or desirables with the mediator. The mediator may then prompt the testing of assumptions, play devil’s advocate, and help each side to move ahead.
Your lawyer can be your ally in early settlement.
She/he can realistically help assess your probable costs, and assist in reality checking of the implications of initiating a ‘conflict escalation spiral’. An informed lawyer acting in your best interests will rarely have reason to counsel against Mediation.
Lawyers can advance resolution through private interchange of ideas and hazards.
Your lawyer can be right on the spot and involved which prevents interruption of progress while you or your counterpart needs to ‘check back with her/him’.
Your lawyer can draft a settlement agreement on-the-spot in an environment of agreement. This is best done between both parties’ lawyers with a dose of some pressure from both parties to avoid complications or fresh debate – a sure fire way to cancel out all the gains of the Mediation.
The bottom line is that you and your counterpart should be informed and not accept rejection of Mediation as an alternative without good and unbiased reason.
Mediation preserves relationships.
Burning bridges frequently backfires, especially in a business environment.