Mediation provides an effective dispute resolution tool for people and organizations in conflict, particularly when communications have become ugly, unproductive, or completely shut down. What is mediation? And how could it apply for planning purposes or in the midst of an apparent impasse? Here are answers to key questions about mediation.
What is mediation?
Mediation is a process facilitated by a mediator, through which parties to a dispute talk through what got them there, options for resolving the dispute, and underlying needs to be addressed. Mediation provides an alternative to the win/lose dynamic present in court litigation or arbitration, by expanding the range of potential solutions.
For example, consider two neighbors who become frustrated with each other when one blares loud music outside in the daytime but the other sleeps during the day because he has a night job. If their interactions have grown too acrimonious, a mediator may be able to help facilitate a resolution – such as to play music outside at times other than when the night job neighbor typically sleeps.
Or maybe a nonprofit board member is upset about a key strategic decision the leadership must make, and she does not feel like anyone is listening to her. Does she resign in disgust and harm the organization’s reputation by speaking poorly of leadership, or does she seek peaceful resolution of the issue through mediation? A mediator may facilitate dialogue and help identify key issues to address, such as finances, strained relationships, restorative steps desired, and how the parties will move on from the conflict.
The mediator typically will ask “hard” questions, such as “What if mediation doesn’t work; then what?” Or, “What is really at stake here for you?” Such questions will move the parties toward generating realistic “win-win” solutions, based on each party’s underlying interests (e.g., reputation, money, relationships).
When do people mediate?
People and organizations come to the mediation table for all sorts of reasons. Often, they are required to mediate because they are in litigation and the court requires them to try mediation as a settlement option. Mediation may be required under a written contract. It also may be required under nonprofit bylaws, such as for a religious membership organization or to address board governance issues. Parties in conflict simply may agree to try mediation upon recommendation of legal counsel or others. Last, in some faith traditions, mediation is a mandated step in peacemaking efforts.
Who is involved with mediation?
The mediator serves as neutral party, not taking sides. Rather, the mediator is there for each party, helping them to advance dialogue in constructive ways, uncovering each party’s needs as they may surface, and generating creative solutions with the parties.
The people directly involved in the dispute need to be present at the mediation so that they resolve the issues in their own best interests. For nonprofits, companies, and groups, one or more persons will need to be specifically authorized to speak on their behalf and enter a settlement agreement.
In addition, parties may wish to have legal counsel present in the mediation, or at least available by telephone. Such assistance may be critical for ascertaining viable legal rights and to help evaluate legally appropriate resolution options. (E.g., is the dispute worth litigating? What is my “BATNA” – best alternative to a negotiated agreement?) Attorneys can also help draft settlement agreements, once the parties have achieved a mutually acceptable resolution with the help of the mediator.
What can mediation accomplish?
Mediation is not therapy; it is a facilitated process that empowers the parties, through the mediator’s careful listening and purposeful guidance. In addition, mediation is not typically an adjudication, where a third party rules definitely on their issues.
Mediation usually entails some review of the past (when things were good), focused attention on the present (essentially, what went wrong), and a discussion of a mutually agreed-upon plan for the future. Some examples of typical mediation solutions include a debt repayment plan, a business separation agreement, a strategic nonprofit board change of direction, allocation of parenting responsibilities for children of divorce, elder care determinations, and definitive resolution of employment claims.
How much does it cost?
Private mediators provide mediation services for widely varying hourly rates. It is helpful – and often fair – if the parties split such costs. Mediation usually is well worth the expense, considering how costly litigation can be and how relationships and organizational health can be greatly harmed from conflict.
Some court systems offer free mediation, such as to address child custody and visitation matters in domestic relations court or for mortgage foreclosure cases. Other free mediation services may be available. For example, Chicago’s Center for Conflict Resolution is a high-quality nonprofit organization that handles some court-referred mediation and other disputes.
What is the result?
A mediator can help parties work toward a written settlement agreement that specifies what each party will do or not do in connection with conflict (e.g., pay money, stay away, provide information). Typically, such agreements are extremely effective long-term, because they have been generated through the parties’ “buy-in” and resulting commitment.
A mediation that does not result in settlement can have varying implications. A party may wish to pursue relief through litigation or arbitration. Or the party may decide it is best to walk away from the dispute, given what he or she has learned through the mediation process (e.g., too expensive, little chance of winning, further efforts are not worthwhile overall). A mediation can provide other valuable information, such as insights into why the other party did something, how he or she feels about the dispute, and what he or she is willing to do (or not do) in order to work through the conflict. And remember, the conversation can continue: now that the parties have dialogued further together, a mutually acceptable solution may be on the post-mediation horizon.
Our law firm provides mediation services through mediator Sally Wagenmaker, who has mediated all sorts of disputes for nearly 20 years. Our attorneys are also well equipped to assist with developing appropriate conflict resolution policies within nonprofit, business, employment, and other contexts.