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What actually happens in mediation?
It's a hazard of the job – people tend to come to me with some very strange ideas of what mediation actually entails. Some people have the idea that it's basically just lawyers doing typical lawyer things, like a kind of court-lite. Others come in with the idea that we're going to just talk and talk until we grind everyone in the room down to a compromise. What most people don't realize is that mediation is actually a structured, logical progression for working towards agreement while also still keeping the best interests of each person involved at the forefront.
So how does that actually work? I'm so glad you asked...
Here are the 5 stages of a mediation:
Each stage in a mediation is a small step toward resolving a larger conflict. The five stages are:
- Making the Decision to Mediate
- Defining the Problem
- Creating Understanding
- Developing Options, and
- Negotiating to Agreement
Making the Decision to Mediate
Before the parties begin talking about the problem at hand, they must decide whether mediation is right for them. In this first step, the parties meet with the mediator (sometimes in person, sometimes over the phone) so they can ask questions and hear from the mediator about the expectations and ground rules for the process. For example, in a child custody case, this stage would include explaining the process to the parents and clarifying each parent's motivation for choosing mediation. Successful mediation requires each person to take steps to understand themselves and the other party. The mediator establishes that each person has the capacity to do this, at least to some extent.
Defining the Problem
In this stage, the mediator helps the parties gather information, confirm what the parties agree about, and determine the list of issues that need to be resolved. Continuing the example of a child custody case, this stage would include listening to each parents side of the story, gathering documents, such as previous court orders or summer activities calendars, and identifying what the parties need to work on in order to reach agreement. For example, both parents may agree about where their daughter should live most of the time, but disagree about how to implement a summer vacation schedule.
In the third stage, the mediator helps the parties identify the specific position each party holds and tries to foster mutual understanding. This stage may seem odd if you're used to a legal model of dispute resolution, however, identifying both the position each party holds and the needs and interests driving those positions are critical to creating win-win resolutions. Returning to our example of where a child should spend her summer, perhaps the father wants to take the child to his family's cabin for July and August, because visits to to cabin were the highlight of his childhood. The girl's mother is more concerned about making sure that their daughter can participate in a mid-July dance recital she's been rehearsing for for months.
In the fourth stage, the mediator helps both parties identify and evaluate the possible solutions. The mediator focuses on helping the parties create options that come from a place of understanding and keeping everyone's best interests at heart. With parents, when both parties can see each other's good intentions, it's easier to identify new possibilities. In this stage, we'd list out all the possible options.
For example, these parents might list out these options:
- Daughter stays at her mother's house throughout July, but joins her father at the family cabin in August.
- Daughter goes with her father to the family cabin in July and August and returns to her mother's house at the beginning of the school year.
- Daughter stays with her mother until the dance recital, then joins her father at the family cabin.
Negotiating to Agreement
In the final stage, the mediator works to help the parties come to a mutually agreeable resolution based on the options identified in the previous stage. In our example, perhaps the father agrees that the child can stay with her mother until the dance recital and the mother agrees that once the recital is over, the girl can go with her father to the cabin.
So to recap:
Everyone agrees to come to the table with good intentions. We collaboratively define the problem and try to uncover the reasons driving each person's interests. This helps us foster understanding, avoid the "us vs them" pitfall, and create space for brainstorming creative options that would otherwise never see the light of day. Finally, since everyone's invested in resolving the issue and we now have options, we're able to negotiate to an agreement that works as well as possible for everyone involved.
And the best part is, since it's not an unforgiving legal process, or a way-too-loosely structured conversation, mediation has the flexibility and the structure to effectively accommodate all kinds of different issues, from child custody cases to business agreements, issues with wills right down to divorce proceedings.
So the next time you have an issue that's getting the better of you – and that you'd really love to be able to solve without getting tangled up in court – give mediation a try! And remember, I'm always here to help. If you have questions or need mediation services, get in touch!
It's good to know more about what actually happens during mediation. My brother is going to separate with his wife soon, so I'll make sure he fully understands this option. I'll tell him to at least talk with a mediator, like you said, to see if that's the right option for him and his wife.
It's good to know all the options before moving forward, for sure. I tell folks to figure out the 'how' before beginning to talk about the 'what'. Some people do that backwards and it causes angst most times.