Alain Burrese provides mediation services to those who need the assistance of a neutral third party to resolve disputes. This page describes what mediation is and how it might help with your conflict.
Contact Alain now to discuss how he can help resolve your or your organization’s dispute.
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What is Mediation?
Mediation is basically a negotiation facilitated by a third-party. Normally the process is private, confidential, voluntary and non-binding. (A signed agreement would fall under contract law) Mediators do not have the power to impose a settlement, their role is to facilitate and assist parties to reach resolution of their conflict. An important consideration regarding mediation is to remember this question: What could now be done that would be better than continuing with the dispute?
Mediation is one of the most widely used forms of alternative dispute resolution and is extremely effective in many situations. One hallmark of mediation, especially with good mediators, is the ability to go beyond what the law says and become creative in solving the dispute. Some of the advantages include resolving disputes creatively, thus saving time and money; since statistics show most cases settle anyway, settling as early as possible makes sense; innovative dispute resolution strategies give the parties control over both the process and the outcome of the dispute; and creative dispute resolution can give the parties confidentiality and preserve their future relationship.
There are various forms of mediation, and the mediator’s function is determined by the organization mediated for, or by the parties and the mediator. Regardless of the mediation model, the mediator attempts to provide an environment in which the parties can communicate constructively. The three most common mediation models are transformative, evaluative, and facilitative.
In transformative mediation, the mediator assists parties in conflict to improve or transform their relationship as a basis for resolving the dispute. This style of mediation looks at conflict as the parties being in a vicious circle of disempowerment, disconnection, and demonization, and parties are encouraged to engage in a full expression of their feelings and attitudes. This style of mediation is also sometimes called therapeutic mediation, and emphasizes emotional concerns.
A transformative mediator’s primary focus is assisting the parties to have constructive interaction to improve the relationship, not settling the dispute at hand. Rather than having a goal of solving the problem, party empowerment and recognition are the goals, seeking to change the parties. Transformative mediators don’t look at disputes as problems, but rather as opportunities for moral growth and transformation. The theory is that by improving the quality of the relationship, the parties are better equipped to resolve not only the problem at hand, but future conflicts as well.
During an evaluative mediation process, the mediator guides and advises the parties on the basis of his or her expertise with a view to their reaching a settlement that accords with their legal rights and obligations, industry norms, or other objective social standards. The mediator will often provide opinions concerning an acceptable settlement range and may suggest likely outcomes in court if the dispute is not settled and goes to trial. The evaluative mediator assumes the parties want and need the mediator to provide direction as to how and why the case should settle a certain way or for a certain sum. The primary focus of the evaluative mediator is to highlight the strengths and weaknesses of the parties’ positions and arguments, as he sees them, in order to bring about a compromise.
The traditional settlement conference during a litigated matter, often uses a evaluative neutral. Many attorneys think of mediation and settlement conferences to be the same, and the terms will sometimes be used interchangeably. Sometimes the term settlement mediation is also used. The focus of these is achieving settlement. Bottom line, settle the dispute. The mediator will encourage the parties to reach a settlement by reaching a point of compromise between their positional claims. The mediator will use tools such as persuasion, “reality testing,” and sometimes pressure, without a significant emphasis on the process of decision making.
In a facilitative mediation, the mediator conducts the process along strict lines in order to define the problem comprehensively, focusing on the parties’ needs and concerns and helping them to develop creative solutions that can be applied to the problem. Unlike the evaluative mediator, a facilitative mediator works with the parties, downplaying his or her expertise. The facilitative mediator views her role as facilitating communication and helping the parties avoid common pitfalls in problem solving. They are “process” experts, not “content” experts. They do not provide opinions about the quality of settlement options, although they may through questioning, and other techniques, assist the parties in evaluating the settlement options for themselves.
Sometimes a combined facilitative-evaluative mediation style will be used. In fact, many experienced mediators will use the style that is needed to assist with the dispute, or that is requested by the parties in the mediation.
John Bickerman, of Bickerman Dispute Resolution, PLLC,Washington,D.C., describes synthesizing the best mediation styles as “analytic mediation.” This approach assumes that good mediation requires the ability to diagnose and adapt to the changing needs of the parties and then to apply the right techniques over the course of the mediation. According to Bickerman and his analytic mediation model, the best mediators use different styles, and adapt and adjust them as the circumstances demand. He continues by stating that the Analytic Mediator uses the style best suited to the dispute at each moment of the process, including techniques in which the mediator engages the parties and their counsel in analysis of the merits of a dispute or their bargaining process. Importantly, analytic mediation requires the mediator to understand and evaluate both risks and benefits in determining when and whether to use certain techniques.
This is what many mediators already to. Bickerman admits that the synthesis of many mediation styles is not new, and that good mediators do it. He just gave it a name so he could talk about it.
What Mediation Is Not:
Mediation is not an attempt to decide who was at fault. Judges and arbitrators may assess fault, but mediators do not. Mediation is a structured, assisted, process to bring the dispute to an end, not to declare winners or losers.
Mediation is not designed to find out what the mediator thinks about the situation. The mediator’s role is to guide the disputants toward resolution, or to achieve a truce. In facilitative mediation, many mediators will refuse to give an opinion even if asked.
Mediation is not designed to establish the true facts of what happened. Mediation is not a fact-finding process like the evidentiary process in court or in arbitration. Mediation looks forward, and rather than looking at what happened, mediation looks at what could now be done that would be better than continuing the dispute.
There are usually no witnesses in mediation. Mediation is not a trial to prove a case. Again, mediation is looking at what would be better than continuing the dispute.
No one is sworn in, and there is no recording made of the proceedings. Mediation is confidential and private and nothing said can be used later at trial. There is no review or appeal process. It produces a settlement or it doesn’t. That’s it. Confidential means confidential.
If mediation does not produce a settlement, any concessions you made cannot later be used against you in court. Again, confidential means confidential.
Mediation is not an opportunity to tell all the wrong things the other party did. While some of the past needs to come out to know what the issues are, mediation should look to the present and future. What could be done now to resolve the dispute?
Typical Phases of a Mediation Session:
There are different models of mediation, but a typical mediation session will have the following phases:
- Mediator’s Orientation
- Statements of the Parties
- Questions from the Mediator
- Private Sessions with Each Side Separately (caucuses)
- Joint Wrap-Up