PREPARING FOR MEDIATION
People participating in mediation, often called "parties" or "disputants", can take several steps to prepare for mediation, as can their lawyers, if involved.
Just as parties need not agree to take part in mediation, they need not prepare for mediation, with one notable exception. In some court-connected programs, courts will require disputants to both participate in and prepare for mediation. Preparation involves making a statement or summary of the subject of the dispute and then bringing the summary to the mediation.
If preparation for mediation is voluntary, why bother? Research uncovered the following potential benefits of preparing. Disputants who meet the mediator prior to the mediation meeting tend to have less anxiety, a higher percentage of their disputes settle at mediation, and they express increased satisfaction with the mediation process.
Is mediation the right dispute resolution process at this time? This subdivides into two questions: is mediation the right dispute resolution process?; and are the parties ready to settle? For example, the dispute may involve a significant power-imbalance between the parties. In such a case, another dispute resolution process may make a better job of balancing power.
Readiness has great importance. Perhaps a loss or injury has occurred too recently. Overwhelming emotions may render objective decision-making extremely difficult, if not impossible. Alternatively, an injury may not have had sufficient time to heal so that any continuing loss becomes difficult to quantify. Other examples abound. Although entering into a mediation to settle the entire dispute may seem inappropriate, this does not mean that mediation cannot help. Some disputants participate in brief mediations with the goal of finding an interim solution to the problem that manages what the parties need to investigate during the interval between the present and when the dispute is ready to be settled.
Another preliminary mediation task involves identifying who should participate in the mediation. Laws give decision-making power to certain individuals. It seems obvious that these individuals are essential to the mediation. Others important participants could include lawyers, accountants, support-persons, interpreters, or spouses. Ask: who needs to be involved in order to reach settlements that will be accepted and implemented?
Convening a mediation meeting requires as much care as convening any important meeting. What location will best foster settlement? Do any participants have special needs? What date and time will work best? Will participants have access to food and beverages? Should the room have a table and chairs, or couches? Does the room have natural light? Does it offer privacy? How much time might a mediation take?
At times disputants have the ability to select the mediator: they should exercise due diligence. Anyone can act as a mediator, with no licensing required. Some mediator organizations require mediators to qualify. Mediators listed in court-connected rosters have to meet certain experiential and training requirements. Many mediators have a wide range of skills. Matching the mediator with the dispute and the needs of the disputant comprises a pre-mediation task. For example, the mediator will need to have skill in managing the many parties involved in a land-use dispute. Expertise in family law may prove important in divorce mediation, while knowledge of construction matters will add value in construction disputes.
The task of selecting the right mediator can occur more readily when participants take time to analyze the dispute. Just what is the dispute about? Parties probably agree in some areas. By identifying agreements, parties clarify the issues in dispute. Typically, misunderstandings occur. These usually result from assumptions. What if these can get cleared up? Might some information be missing? and if all of the disputants shared all of the information, would the matter quickly settle?
Mediation involves communication and commitment to settle. Disputants can hone their communication-skills prior to mediation so that they express what they want more clearly and so that they hear what the other disputants say about what a settlement needs to include. Sometimes the dispute isn't about money. Rather, a sincere apology will resolve matters. When disputants communicate respectfully, they generate more opportunities for creative settlements.
What objectives does each of the disputants have? Thinking about creative ways that each disputant can achieve their objectives before the mediation allows participants to check out the viability of possible outcomes. They come to the meeting well prepared to settle.
What information do participants require in order to make good decisions? Do pictures, documents, corporate records, pay-stubs, rent-rolls, receipts, medical reports, bank-statements and so forth exist that parties need to gather, copy and bring to the mediation? With all of the information at hand at the mediation, one may avoid the need to adjourn the meeting to another, later date while parties gather the information. And one minimizes the risk of overlooking a critical piece of information.
Parties may need to make procedural choices. One important decision involves whether to keep the mediation. Other decisions address how to pay the mediator and whether to share all information relevant to the dispute. A contract signed before the mediation can address all procedural decisions. These contracts have various names, such as "Agreement to Mediate" or "Mediation Agreement". Mediators often provide an Agreement to Mediate. Disputants, and their lawyers, can (by agreement) insert appropriate provisions into the agreement. In some cases, court-connected mediation programs have pre-determined procedures.
Mediators have a wide variety of practices in matters of contact with the disputants or their lawyers prior to the mediation meeting. Some mediators hold separate, in-person preliminary meetings with each disputant. These have many names, including "preliminary conferences". Disputants who meet with the mediator before the mediation learn about the process of mediation, their own role, and what the mediator will do. Having met the mediator before the mediation, disputants can put to rest any concerns about whether they can trust the mediator's neutrality and impartiality; and they can focus on how to resolve the dispute.
The above outline sets out the most significant steps in preparation for mediation. Each unique dispute may require a unique combination of preliminary steps.
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