Mediation is a unique problem-solving process. It is a process in which YOU have the opportunity to explore a full range of options that will satisfy the NEEDS (as distinguished from the WANTS) of all participants in the dispute – a process in which YOU decide which options you embrace as part of the solution to those needs – a process in which YOU are in control of what that solution will look like and how it will be implemented.
|"...mediation is a needs-based
Stated another way, mediation is a needs-based negotiation that is cooperative, not a positional-based process that is confrontational. It is a process in which the participants focus on the problem and what the future should look like, not on the other participant and who is to blame for what happened in the past. It is one in which the participants are helped to actually listen to each other and consider what the other one says in working together to meet individual needs. This is substantially different from a process, such as a trial, in which some outside party, like a judge, decides the merits of the various contentions and imposes a solution on the participants.
In other words, it is an opportunity for the participants to follow a creative and collaborative "win-win" process, rather than to depend on a possible roll of the dice in a courtroom in a "win-lose" or even a "lose-lose" process. YOU are the judge; together with the other participant, YOU decide what will be the solution to YOUR dispute.
The process itself has four stages: (1) Gather information about the dispute; (2) help the participants identify what subjects they want to address in order to resolve the dispute; (3) assist the participants in looking for possible options that might be elements of a solution for each subject; and (4) guide the participants' discussion and decision as to which elements to embrace as their resolution for each subject – a resolution that will meet each participant's needs.
Mediation has three important characteristics.
[emphasis]First, it is voluntary.[/emphasis] The participants choose to mediate their dispute, rather than to accept a decision from someone else.
Just as the participants choose to undertake mediation, any participant can decide at any time to end it. Participants are urged, however, to give the process a fair and reasonable chance to succeed. Participants are asked to trust the process, and trust that, because the mediator is trained and skilled in helping participants work through the difficult speedbumps they can encounter during mediation, those speedbumps are not insurmountable barriers to ultimately achieving agreement.
[emphasis]Second, it is confidential.[/emphasis] Everything that is said during a mediation session or in preparation for a session is confidential – it will not be divulged to anyone without your permission, except in a few specific instances where reporting may be required by law, such as instances of child abuse or where there appears to be a credible threat of violence or bodily harm. The one exception to confidentiality is that any settlement agreement that the participants voluntarily reach may be divulged or subpoenaed in appropriate circumstances.
[emphasis]Third, the mediator is neutral.[/emphasis] The mediator's role is to help – not to counsel or give advice, not to decide who is "right" or "wrong," not to take sides. The mediator helps the participants talk to each other and to develop creative approaches to resolving the issues between them – approaches in which the participants focus on what their real INTERESTS and NEEDS are in resolving the dispute. Accordingly, it is important that participants understand that it is not necessary to seek "approval" from the mediator, and that it IS important to be open and candid during the mediation session, even if certain matters may be embarrassing or uncomfortable to talk about for some reason.
A couple of administrative details. A mediation session typically lasts for two hours. If the participants and the mediator all agree, subsequent two-hour sessions will be scheduled if necessary. If agreement is reached, the mediator may record the points of agreement in a Memorandum of Understanding, at the participants' request. This Memorandum easily can be made into a binding contract between the participants by an attorney.