Mediation is a process geared towards conflict resolution. It is characterized by a negotiation between dissenting parties in the presence of an impartial third party, namely the mediator. The mediator is not a judge, and cannot decide or force solution upon any party.
The mediator’s job is to facilitate a process where each party has an opportunity to present their point-of-view within the conflict, hear the other side and prepare them to have a conversation through the use of the PULSE Discovery Frame process to reach the best possible solutions.
Also, the mediator guides the parties in constructing a written agreement. Often, resolutions reached in mediation allow for greater flexibility and creativity than those reached in arbitration or the court.
This may include special payment agreement, apologies, barter, future labour and business contracts, letter of recommendation, etc. The disputants own the solution.
The mediation process is strictly confidential. In the event that one or both of the parties decides to take their case to court, the information revealed, as well as all that transpired in mediation cannot be used as evidence in a court of law, or for that matter, in any other context. However, should the parties terminate the dispute in mediation with a formal written agreement; its status can become that of a binding legal document.
- The mediator’s role in the conversation is to guide the process and ensure nothing is missed. He/she will listen for both parties, following the protocol for speaking and listening so that they can learn through demonstration and imitation skills that will help them resolve their differences.
- The mediator’s role is also to facilitate both parties understanding of the circumstances, their individual perspective, and to help them identify criteria for a sustainable resolution.
- The mediator will facilitate parties’ exploration of possible ideas for resolution, and help them write a behaviorally specific doable plan to resolve their circumstances.
- The mediator’s role is to remain impartial. He/she has a checklist to help guide parties’ conversation and ensure nothing is missed.
- The disputing parties’ role is to talk. Thinking and not talking [TNT] is, dangerous. People are not fully ready to resolve until they have said everything they need to say, gently.
A mediator’s multiple roles include: preparing the parties, reducing the tension in communication between the parties, guiding the negotiations, clarifying any misunderstandings, helping the parties filter through their various feelings and emotions, as well as foster a climate of respect. The mediator is there to contribute his understanding of the particular negotiation dynamic. He is there to empower each party to work towards reaching the goal of finding creative and effective solutions, to clarify and ensure that appropriate solutions being discussed can be implemented realistically.
Throughout this process, the mediator helps identify possible ways to broaden specific suggestions that come up in order to maximize their opportunities, or conversely, to point out risks, or aspects of the suggestions that do not appear to be realistic or able to stand the test of time. At any point during the mediation the mediator may decide that the case is not appropriate for mediation and discontinue the process. In such a situation, when the dispute is not formally terminated in mediation, it still affords all parties the opportunity to improve and build future communication that may be critical to resolving the dispute no matter what the context.
To be continued……………
( An extract from the BOOK “The role of Mediation in the management of workplace differences” )