Preparing for voluntary mediation

From what many call facilitative mediation the following would apply.

Facilitative mediation can be described as a process in which a mediator plays a role as an intercessor between parties in finding a pathway towards resolution of issues.

Identify and focus in on interests and their priorities.

Define what are the issues which stand as road blocks to those interests.

Define what needs must be satisfied to resolve the issues which serve the interests which  require protection.

Always have a best alternative to a negotiated agreement before entering into the mediation.

Isn’t this too complicated. I will admit that even as a mediator I sometimes have trouble understanding how these three words (concepts) practically fit together in every case. Some interests stick out like a sore thumb. When its about the money, the interest is more easily identified. But often there are very subtle interests which parties are trying to protect. They may not make it known at all. Their views on what interests are at stake may change during a mediation. When the interests they are trying to protect are unknown it’s easy to go off in a tangent on the issues. If a party is interested in saving face but does not make that known and there’s money involved then a mediator can go off on a tangent thinking it’s about the money. Insofar as needs are concerned poor bargainers will come in with demands which are totally disproportionate to what is finally agreed upon. Sometimes they become so stuck on disproportionate demands they become blind to the point mediations fail. Mediators can misread a parties needs because that party has not taken the time to determine what interests they are trying to protect, or misidentify the issues, confusing their opponent and the mediator who seemingly go off on another tangent.

In addition in preparing for a voluntary mediation it is prudent to put oneself in the opponents shoes so as to seek some level of alignment of a mediation strategy.

Most often there is a need for some “proof” to ones claim. A simple example is in bringing estimates to support what it would cost to repair something which has been damaged. More than one is better than only one. In a court trial the proof is called evidence and you have to understand the rudimentary requirements associated with what is evidence and what is not. Rarely is your own estimate evidence (prejudice?, lack of expertise, a whole variety of issues come up with generating ones own estimates). Would you accept your opponents own estimate? In today’s world photos still say a thousand words but with much less effort than in the early days of photography.

Knowing what you want is a simpler way of saying needs. Aligning that with the issues and the interests is more difficult. Once again take money. Claimants often come in with demands without thinking through their rationale. Common mistakes are focusing on punishing their opponents, forgetting to think about the time value of money received today versus having to wait for more, giving up choice which is theirs in mediation but not theirs in a judicial proceeding, making a miscalculation of the strength of their case, neglecting to factor in the probability of having to pay their attorney fees and the amounts which such fees can rise to, letting their emotions become the primary focus of their conflict, and unchallenged  and unverifiable advice from their advisors.

Another step in preparation for voluntary mediation is in selection of a mediator who not only has the skills but that both parties feel they can work with. There are many mediators and individuals need to shop around like they would for any other service. There should be a role for referrals from people who have utilized a mediator and can attest to their skills and ability to work with the parties in the kind of environment required by the conflict.

Voluntary mediation can and does achieve mutual agreement but it does not happen by just applying to it.  Each party involved has a role to play in its success. A mutual desire to utilize voluntary mediation is the first step. Preparation is the next.