Mediation is a dispute resolution process between two or more parties (organization or individuals). It is non judiciary, since it does not take place in tribunal, it’s voluntary, since all parties have to agree to participate, it’s based on collaborative principles instead of confrontation and it’s confidential since all parties, including the mediator, commit to the secrecy of the debates.
With the help of the mediator, the parties in conflict collaborate during the mediation process to find a suitable agreement that will satisfy their respective interests.
A classical example is the conflict between two chefs who argue who will be able to use the only orange left in the kitchen.
How can it be solved? Cutting the orange in half? It is one possibility but it won´t satisfy completely the parties since both of them will only get a half of what was expected.
Now, let’s suppose you ask the question “Why do you need the orange?” to both parties, and one party answers that he/she wants the juice and the other party says that he/she wants the rind to make a cake. Now you satisfy both interests, hidden behind each party’s initial positions.
The mediator is an independent professional who received a specific training in mediation techniques and whose job is to help the parties involved in a conflict to clarify their visions of the conflict and to create options leading to a settlement that will maximize the satisfaction of their interests. The mediator does not have any power of decision or intervention in the decisions taken by the parties.
Mediation is an informal process, as opposed to the traditional legal process. There exist several mediation styles and mediators can actuate according to their own methodologies, but it can be assumed that the mediation will generally occur in several phases:
• Opening statement by each party about what are the issues of the conflict;
• Creation of an agenda listing all issues that will have to be jointly worked out;
• Options’ creation
• Draft of the agreement
As an option frequently used, one or several private working sessions (called “caucus”) may be organized by the mediator with each party.
The objective of mediation is to find a solution to a conflict that satisfies the interests of all parties. Such a solution can coincide or not with what´s written in the law. It´s recommended that all parties involved come to mediation with a legal representative, who will be able to give them some advice along the process and help them decide to go ahead with a settlement with a good knowledge of what could be an alternative solution based on the law.
You get to decide: The responsibility and authority for coming to an agreement remain with the people who have the conflict. The dispute is viewed as a problem to be solved. The mediator doesn’t make the decisions, and you don’t need to “take your chances” in the courtroom. Many individuals prefer making their own choices when there are complex tradeoffs, rather than giving that power to a judge. You need to understand your legal rights so that you can make decisions that are in your own best interests.
The focus is on needs and interests: mediation examines the underlying causes of the problem and looks at what are the solutions that best suit your unique needs and satisfy your interests.
For a continuing relationship: Neighbors, divorcing parents, supervisors and their employees, business partners, and family members have to continue to deal with each other cooperatively. Going to court can divide people and increase hostility. Mediation looks to the future. It helps end the problem, not the relationship.
Mediation deals with feelings: Each person is encouraged to tell his own story in his own way. Acknowledging emotions promotes movement towards settlement. Discussing both legal and personal issues can help you develop a new understanding of yourself and the other person.
Higher satisfaction: Participants in mediation report higher satisfaction rates than people who go to court. Because of their active involvement, they have a higher commitment to upholding the settlement than people who have a judge decide for them. Mediations end in agreement around % of the time and have high rates of compliance.
Informality: Mediation can be a less intimidating process than going to court. Since there are no strict rules of procedure, this flexibility allows the people involved to find the best path to agreement. Mediation can deal with multiple parties and a variety of issues at one time. In family mediation, for example, two children, Mom, Dad and Grandma might be involved. They may need to talk about chores, school performance, curfew, allowances, discipline, and the use of the kitchen.
Faster than going to court: Years may pass before a case comes to trial, while a mediated agreement may be obtained in a couple of hours or in sessions over a few weeks.
Lower cost: The court process is expensive, and costs can exceed benefits. It may be more important to apply that money to solving the problem, to repairing damages, or to paying someone back. If you can’t agree, other legal options are still possible. Even a partial settlement can lessen later litigation fees.
Privacy: Unlike most court cases, which are matters of public record, mediations are confidential.
The types of conflict cases appropriate for mediation include:
Business: Collective bargaining between labor unions and management is one of the most familiar models of mediation. Workplace disputes between business partners, co-workers, or supervisor and employee can be mediated to correct particular problems and continue productive relationships. Contract disagreements, insurance claims, real estate disputes, construction conflicts, and cases between landlord and tenant, consumer and merchant, and farmer and lender are common.
Community: Representatives of interest groups, businesses, and several layers of government can come together to negotiate agreements on public policy development. Cases concerning the environment, land use planning, parking, zoning, and nuisance complaints are often mediated.
Small Claims: Civil cases involving smaller amounts of money or neighborhood disagreements are often sent to mediation.
Divorce and Child Custody: Mediation offers a couple the chances to define what is most workable for their particular situation and to tailor an agreement that reflects their own circumstances. It can enable future joint decision-making. Visitation, property division, alimony, and unique circumstances such as relations with grandparents or stepfamilies can be included. Child custody disputes are automatically sent to mediation in some jurisdictions. Custody and visitation issues are evaluated in terms of the child’s best interests and the parents’ shared concerns. The privacy of mediation can make it easier for people to discuss emotional matters.
Interpersonal: Arguments between individuals may not necessarily involve a legal claim. Roommate and family conflicts are often well-served by mediation.
School or University: Students from elementary school to college have been taught to successfully mediate disputes among their peers. In some countries, courts refer some truancy and disciplinary cases to mediation between parents, students and school personnel. Some school districts mediate controversies with parents of handicapped students over their plans for meeting the child’s educational needs.
Criminal: Mediation of minor non-violent crimes can help unclog the courts and bring about restitution. Direct communication between victim and offender can be beneficial to both, and can make it easier to deal with the defendant in the future. Cases often go to mediation after the person has been found guilty of the crime. Vandalism, passing bad checks, theft, and juvenile cases are the sorts sent to mediation.
Convirgente is dedicated to organizational conflicts (business and workplace) but we can help you to find the right mediator for all other cases. Please contact us to get more information.
The commercial mediator has to cope with some issues that are indeed specific to the business environment.
First of all, business conflicts that involve large organizations can have an impact beyond the parties and have collateral effects on the shareholders or workers, thus creating an increased responsibility for all parties – and for the mediator.
Second of all, bargaining is the most common model of negotiation in the business world. To be able to bring parties in a mediation to substitute this model with interest-based negotiation is especially challenging for the mediator, who has to be able to keep those parties focused on the true issues and to be savvy enough to help them to get out of impasses.
Last of all – and without prejudice to his impartiality – the mediator has to stimulate the parties to reach a settlement that will reestablish and reinforce the business relationships between them.
Who should participate are the parties in conflict. If those are organizations, then they will have to be represented by somebody who has a true and complete power of decision, including the power to sign a settlement agreement. It´s a prerequisite that the mediator has to ensure in the preparation phase.
Each party involved in a conflict has to decide if she/he will be accompanied by her/his lawyer during the mediation session.
The presence of the lawyer is generally recommended, since she/he can actively contribute to the mediation process, for instance in explaining some specific issues to the client or in indicating the probability of getting a better solution through litigation. For this reason, lawyers are more than welcome in our mediations.
Whatever the decision of each party, the mediation process is flexible enough to authorize a break during a session and call the lawyer to get his advice if she/he not present physically.
At Convirgente, we believe that the pricing of alternative resolution processes should be transparent. Our pricing model depends on the category of the conflict, workplace or commercial. If you have any specific question, please contact us.
It depends of course on the nature of the case. Generally, a workplace conflict can be solved in a few hours. More complex cases, such a large commercial disputes, can require a full day, or even two days.