| Lawyer | Practice Areas | Office Addresses | Fees
- Credit Cards |
Index |
New One-Page Overview of the Phases of Mediation Prime
Directive—The
mediator must always maintain neutrality and give each person equal
opportunity. Phase 1 - IntroductionPreliminary
Orientation of the Parties—The parties sign an agreement to mediate. Mediator’s
Introductory Statement—The mediator asks if the parties can agree to the rules. Opening
Statements by the Parties—The parties mostly complain about the past. The
mediator should allow every person an uninterrupted opening statement before
asking any questions. The mediator should listen to the parties about what
they want and what options they think are possible. After all the
parties speak, the mediator may use restatement to ensure that each
party heard the positive ideas and possible solutions offered by the others.
The mediator does not need to know details about the past. Instead, the
mediator leads the way toward the future by moving on to the next Phase even
before the parties move on. Phase 2 - Past Emotional
Ventilation by the Parties—The mediator may ask each party, “How do you feel about
what happened?” The parties may get emotional about the past and the
mediator should validate their emotions without agreeing with them: “I
sense that you are very frustrated.” Sometimes a mediator can encourage
ventilation by allowing a moment of silence to build tension. It is usually
productive for the parties to “let off steam” so that they may be less
emotional afterward. The mediator should validate the emotions and then
attempt to move to Phase 3 when the parties begin to repeat themselves or when
they begin to lose control of their emotions. Phase 3 - Present Issue
and Problem Identification Between the Parties—The mediator asks each
party, “What do you want?” The mediator may repeat this or a similar
question until the parties give real answers. The mediator’s goal is for the
parties to exchange information and to begin to focus on the present and
the future instead of the past. Usually, the less the mediator says, the
better—to prompt someone to talk or respond, the mediator may simply look at
that person, or use his or her name as a question. It is easier to maintain
neutrality when asking only simple, non-threatening questions which begin with
the word, “How…?” Phase 4 - Future Negotiation
and Option Generating by the Parties—The mediator asks each party, “How can we reach
an agreement?” The mediator may repeat this or a similar question until the
parties give real answers or the mediator may guide the parties in
brainstorming. The mediator’s goal is for the parties to generate their
own ideas to resolve the dispute with the focus on the future. The
parties will like their own ideas better than the mediator’s ideas. The
mediator should not be a solution seller! The
Parties Reach an Impasse—The parties may regress to an earlier Phase of the mediation
process and may be emotionally focused on the past or may feel that there is no
possible solution to the dispute. The mediator should use impasse-breaking
techniques to remind the parties to focus on the future. The mediator
may continue to ask the parties “What do you want?” or “How can we reach an
agreement?.” The mediator may ask each party to explain the negative impact of
failing to settle the dispute now. The mediator may call for a recess
where each side of the dispute meets privately to confer with their associates
or attorneys without the presence of the mediator. Or, the mediator may call
for a caucus so that the mediator can meet privately with each of the
parties perhaps to discuss additional information which the parties are
reluctant to reveal. In a caucus, the mediator must still maintain neutrality
and must not reveal anything discussed in a caucus with a party to anyone else
without that party’s permission. Phase 5 - Conclusion Agreement
Writing—The
mediator should say “Let’s get these agreements down on paper” even
before the parties have negotiated all the details of a complete agreement.
Once the parties see the agreement becoming a reality on paper right before
their eyes, it is less likely that the parties will regress or lose hope. The
mediator should let the parties dictate the words of the written agreement with
as little interference from the mediator as possible. The mediator does not
want to bring up issues that may spoil the agreement or reopen old wounds.
However the mediator may ask short, subtle questions to do reality testing
such as: “Who?,” “What?,” “Where?,” “When?,”
and sometimes “How?” or “How much?,” but almost never
“Why?.” The purpose of reality testing is to make the agreement clearer
and more realistic to the parties. Closure—The mediator should thank the parties for their efforts and congratulate them for reaching an agreement. The mediator should remember (but not say) that the parties may not feel wonderful about their compromises. By maintaining neutrality, the mediator can ensure that the parties will feel that the mediation was fair and worthwhile. Note: This Overview reflects the individual style of
the author and is not the only correct way to mediate. |