Explaining Mediation: A Private Process for Resolving Disputes

1. Bringing Mediation Home Lynn P. Cohn

2. Explaining Mediation • voluntary • a private process in which a neutral party helps people resolve disputes • getting two or more emotional people with a problem to talk with each other Mediation is:

3. Explaining Mediation • making decisions for disputants • free discovery for an inevitable arbitration Mediation is not:

4. Explaining Mediation Key Features of Mediation Process • Voluntary • Parties decide to enter the mediation process • Parties can leave the mediation process at any time • Parties decide on the outcome of the dispute

5. Explaining Mediation Key Features of Mediation Process • Neutral, impartial mediator shall: • only mediate matters in which she/he can remain impartial • disclose conflicts of interests; following disclosure, may continue if parties agree • honor the principle of self-determination

6. Explaining Mediation Key Features of Mediation Process • Confidential • It is a confidential settlement process. • Neither the mediator nor the parties shall disclose the communications/conduct of the mediation, unless all parties agree (with limited exceptions).

7. Explaining Mediation Why Mediation Works • Quick • Low cost • Flexible process • Maintains/improves relationships • Gets parties to come together/talk

8. Explaining Mediation Why Mediation Works • Improves poor communication/resolves misunderstanding • Discovers/addresses the true interests of parties • Moves beyond different views of law/fact • Allows creative solutions beyond win/lose • Disputes settle • Parties do not give up right to arbitrate

9. Explaining Mediation When Mediation Will Not Work • Precedent desired • No relationship and cheaper to contest the claim • Vindication/punishment remains main objective • Jackpot syndrome (maximize/minimize recovery)

10. Explaining Mediation Mediation Versus Arbitration • Mediation and arbitration are private • Mediation and arbitration both involve the assistance of a trained neutral • Mediation is cheaper than arbitration • Mediation is faster than arbitration • Mediation offers a wide range of solutions, unlike arbitration

11. Explaining Mediation Mediation Versus Arbitration • Mediation allows parties to control the outcome, unlike arbitration • Mediation may maintain/improve the relationship, unlike arbitration • Arbitration ensures certain closure, unlike mediation

12. Selling Parties On Mediation • Explain the process at their level. • Find out what the concern is, and address it. • Explain options if case does not settle. • If available, offer data about success/satisfaction. • Give a hesitant party some (but not too much) time. • Let them decide.

13. Establishing a Panel of Mediators • skill with mediation process • substantive knowledge • reputation for fairness Select mediators based on:

14. Establishing a Panel of Mediators Key Components of a Mediator Training Program • Mediation demonstration • Simulations, simulations, simulations! • Communication skills • Negotiation skills • Mediation strategies

15. Establishing a Panel of Mediators Key Components of a Mediator Training Program • Ethical concerns • Feedback • Procuring cause • Opportunities to refresh skills over time

16. Establishing a Panel of Mediators Alternatives to Setting Up Own Training • Send students to general mediation skills training • Connect to mediation panels for court programs

17. Materials • Model • Training manual • Forms • Disk

18. Data Collection • Quality control surveys • Database • Report to NAR