By Ian Szlazak, Resolution House
“There are many definitions of the mediation process. Perhaps one of the most accurate, certainly the simplest, is that it is “assisted negotiations”. Recognizing that this definition does not provide new participants with much guidance on what to expect and how to prepare for mediation, please consider the following guiding principles, written both for parties and their representatives. We think that the more attention you pay to these principles, the greater the likelihood that your dispute will be resolved in a satisfying manner.
- Ensure that both party and representative are present, fully informed and have authority to resolve the dispute. Where logistics are a problem, with the consent in advance of the other party, you can use video-conferencing or tele-conferencing, although we believe that they are not as effective as being present.
- Expect the unexpected. Be willing to accept that new information and/or developments may arise. See these as opportunities to reduce or eliminate problems.
- Listen, listen, listen!! Listening is to mediation what location is to real estate. And focus on the problem, not on the people associated with it.
- Watch those tactics. Remember that mediation is not well-served by many tactics borrowed from litigation. Consider how you would react to what you are planning to do. Is it potentially offensive? Is it necessary? Is it in your real interests?
- Be prepared for mediation. Spend energy and time thinking through and discussing your approach. Consider options, alternatives and “what ifs” in advance.
- Be imaginative. The solutions at mediation often are richer and more varied than that which an adjudicator can provide. Think outside of the box and turn constraints into opportunities. Try to look at the issues through the eyes of the opposite party.
- Watch yourself. Be aware of how you are perceived and how your presentation of a position invites or defies a productive dialogue. Build this into your pre-mediation preparation.
- Mediation briefs or materials should be complete, persuasive and delivered sufficiently in advance of the mediation so as to allow all concerned a reasonable opportunity to digest them. Of course, know your own materials very well. Be ready to clarify and explain.
- Do not underestimate the ability of the other party, often the instructing individual, to comprehend and play a pivotal role at mediation. Mediation is best thought of as a team endeavour, not as a spectator sport.
- Think and rethink your strategic choices in negotiation, reviewing what mediation procedures you prefer, who will do or say what, what your “bottom line” is and how you determine whether you have achieved a good result or not. Use reasonable comparators and evaluative criteria, based on professional advice.
To make the most of any dispute resolution process you must be well-prepared to explain where you are “coming from” as well as be willing to deal with issues and questions raised by someone else. If you have time, background reading in the dispute resolution field may be helpful. Negotiating experience can be, but is not always helpful — it depends on the quality of your experience.
Understand the elements of the process you are about to undertake. For example, giving evidence under oath at an arbitration is a far cry from being a negotiator/participant at a mediation. Parties at arbitration must be prepared to recount what they know, while participants at mediation must engage in far more listening and interacting with the other party(ies), possibly negotiating issues to resolution. At arbitration, someone else (the arbitrator), will decide the outcome of your case, and that outcome may not be to your liking. At mediation, the mediator will not impose a decision upon you, but you may have to make tough decisions relatively quickly in order to resolve the dispute. You may not get everything you want. Your pre-mediation preparation with your representative may make all the difference.
In other dispute resolution processes, still other qualities and efforts may be called upon, again putting the onus on you to thoroughly prepare for what you will be doing. A good service provider can assist the parties in understanding the key features of each process and their advantages/disadvantages.”
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Curated for PhloxADR – Your Alternative to Court
We are a group of alternative dispute resolution (ADR) professionals that have experienced some of the same struggles you face today. Seeking alternatives to lengthy court experience, sky rocketing legal costs and never ending battles, which brought us together, is the service we provide for you,