HOW MEDIATION WORKS
Picking the Mediator & Introductions
To mediate successfully, you will need to find an impartial professional who is thoroughly trained. Investigate the background and areas of expertise and experience the mediator will bring to your discussions.
Sometimes, the mediator may be appointed by a court. In Virginia, Court-appointed mediators have extensive training, mentorship and continuing education requirements. Even if your case is not being referred by a court, find out if your mediator is certified by the Supreme Court of Virginia or by any similar authority in your state.
"Differences don't cause problems,
but how we react to them can." |
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--Pat Heim
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Getting the Mediator "Up To Speed"
To start, the mediator explains what mediation is and what the mediator’s role is in the process. The mediator explains the confidentiality of the process and what parts may not be confidential (such as allegations of child abuse, threats of criminal activity, resulting agreements, etc.).
If all participants wish to go forward, everyone present including the mediator will sign an agreement to mediate and the mediation begins.
In all likelihood, the events leading up to mediation are firmly in the participants’ minds. However, the mediator may need to be brought up to date. The mediator will ask each participant his perspective on what brings everyone together for the mediation. Depending on the complexity of the facts, these descriptions can take anywhere from a few minutes to much longer.
Understanding the Issues
How many times have you had a discussion (or argument) with someone only to discover that you really didn't disagree? It was really a matter of understanding what everyone's concerns were.
Once an effective mediator understands the facts that led the participants to the mediator in the first place, the mediator will work with everyone to frame the issues. What happens next varies greatly. For example, if there is little question about what each participant hopes to get from the mediation, everyone may meet together to explore options that would meet as many of the needs of the participants as possible. On the other hand, if the participants have a great deal of animosity but are nonetheless interested in finding a mutual solution, the mediator may ask the participants to meet with the mediator in separate sessions.
What can be counted on is an orderly presentation of the issues involved. Creative ideas for resolution are encouraged by the mediator, but resolutions come from the participants.
Solutions!
If a solution is reached, either the mediator or the participants’ attorneys would create a document reflecting the agreement. If attorneys are not involved (which can often happen), the mediator will act as the scribe for the participants who would then be encouraged to seek legal advice to review the agreement. (Even if your mediator is an attorney, the mediator is not ethically permitted to give legal advice to any of the participants.)
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"Although the river is broad...
There are times when boats collide"
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--Chinese proverb
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If the mediation is completed successfully, the participants will have an agreement that resolves their differences, is created confidentially, and is probably more flexible than a court-ordered solution. And it was probably completed for a lot less money than might have been spent otherwise.
For examples of creative results that are possible through mediation (as opposed to litigation), take a look at our resource: "Mediation: The Creative Alternative".
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