1. The Benefits of Mediation
The greatest advantage of Mediation is the control you have over the process and outcome. This advantage cannot be overstated because it is the parties themselves who fashion any settlement and in whatever manner they wish. How their dispute will be settled is not left in the hands of a third party. This control by the parties allows for much greater flexibility and creativity in resolution.
Cases going to court are fraught with uncertainty as to length of time, outcome of the process and cost.
The nature of the mediation process is such that it allows for ordinary conversation and discussion to take place between the parties. While having some structure, mediation is much less formal than the court system. It presents an opportunity to fully explain your point of view and to fully hear the other party’s perspective.
Mediation is timely and can be schedule based on the availability of the parties themselves. Because of the timeliness of mediation your conflict/dispute gets addressed sooner with the possibility of earlier resolution as compared to awaiting court dates and processes.
Your Mediator is trained in dispute and conflict resolution and can provide valuable assistance with identification of issues, dealing with impasse and setting a constructive tone for effective communication between the parties.
As an impartial third party the mediator brings valuable objective perspective to the dispute or conflict.
2. The Mediation Process
Mediation does not have a prescribed structure to the process. A typical mediation begins with the mediator’s opening statement that usually covers such subjects as confidentiality, role of the mediator, the agreement to mediate, and mediation process.
The mediation process varies considerably by virtue of the nature of the case, the parties involved, and the methods used by the Mediator. In court- based mediations such as those falling within the Ontario Mandatory Mediation Program, the parties are almost always represented by counsel. In workplace mediations, if in a Unionized organization, a union representative may be involved but in my experience it is the exception. Otherwise the employees involved in the dispute will meet with the mediator. My practice in workplace conflict is to meet with each party separately prior to the joint meeting of the parties.
Consider the difference between the following two mediations to get an idea how two mediations might differ.
The first involves a personal injury liability claim with significant monetary ($) risks and the parties include the injured claimant, her/his lawyer, and the insurance company representative (s). The case will invariably be filed within the court system and the legal briefs will be brought to the mediation. The mediation process associated with this case will be somewhat formal and the focus will be on legalities and reaching a settlement. The location of the mediation may be in the offices of the lawyers involved. After the mediator’s opening statement each party usually outlines their legal case to the other. Oftentimes the mediator will then separate the parties to begin confidential exploration of settlement options. The Mediator essentially facilitates negotiations between the parties. The goal of this mediation is settlement.
The second mediation concerns workplace conflict between two individuals. In most cases the Employer has arranged for the mediation. The parties involved will be the two employees. If it is a unionized environment the Union involvement will vary. As background to the mediation most often there have been workplace complaints and sometimes investigations.The setting for the mediation due to confidentiality concerns is regularly held off the Employers’ premises, perhaps in a hotel conference room.
Going into this mediation many mediators, myself included, will meet separately with each party to explain the mediation and ask about what each party hopes to achieve in the mediation and the issues that lie in the way of reaching that goal. Following the individual meetings the parties meet together and the Mediator assists the parties in reaching their identified goals. The discussions are less formal in nature compared to a mediation that is court directed or within the court system.
The goal of this mediation is a constructive productive working relationship between the two parties.
The difference between the two mediations is obvious and the Mediation Method used in each case will be different. In the above Insurance civil court case an Interest-based method aimed at reaching a settlement would be appropriate as compared to the workplace case where the Insight Method* aimed at building a relationship would be more suitable.
However it will be the parties themselves who will define the aims of the mediation and so influence the mediator’s method.
3. Various Mediation Methods ……often called ‘Mediator Style’
You will see the term ‘Mediator Style’ to describe how different mediators mediate. That term, in my view is misleading and does not properly describe the differences between mediators. In my mind, style suggests personal mannerisms, dress code etc. and says nothing about what the mediator does in mediation.
That said, the subject of ‘the various kinds of mediation’ is an unsettled area in the field of mediation. Mediation practitioners use various terms to describe what I call ‘Mediation Methods’ and there is no consensus in the mediation community about standard terminology to use to describe various forms of mediation or mediation methods.
When I use the term ‘mediation method’ I am referring to the underlying philosophy or ideology that the mediator adopts in dispute resolution. That philosophy or ideology may change depending on the type of mediation case in question. Civil tort mediation will, for the most part, require a different mediation method or ideology than a workplace or family mediation as discussed in Section 2.above.
The consumer of mediation services should be able to understand what they are buying when they engage a mediator. You should know what dispute resolution ideologies the Mediator brings to their dispute and this is a challenge for most people who are buying mediation services. No doubt many consumers are unaware of the different mediation methodologies that exist.
It is not possible to explain here all the available Mediation Methods to the degree that the consumer will adequately understand their options. However incorporated in this website are resources for your use. After consulting these resources you will be equipped to ask informed questions of your prospective mediator and be better able to make an informed decision in the selection of a mediator.
Please see the ‘Mediation Methods Continuum’ following, that I have developed to provide you with a framework to understand the range of Methods of Mediation.
To better understand the ‘Continuum’ there are links to resources to explain further the methods of mediation listed
Following is the list of mediation methods incorporated in the ‘Continuum’. As depicted on the ‘Continuum’ each of these methods is more focused on either ‘settlement’ of the dispute or ‘relational’ issues of the parties. A focus on ‘settlement’ is as the term suggests ‘ a mediation method principally concerned with getting a settlement. If the parties to a dispute will not meet again there is little concern for ongoing relations. A focus on ‘relational’ means that the relationship between the parties in mediation is of great significance. The mediation method in such cases will address the need to maintain and/or repair the relationship.
Evaluative Mediators provide opinion and advice about how the case should be settled and may provide an assessment of the merits of each party’s case or position. The evaluative mediator has no decision- making authority but tend to be directive.
This method of mediation has also been referred to as problem-solving mediation. It follows a linear approach to resolving disputes and is oriented to resolution and settlements. The keynote about this method is the focus on uncovering the underlying interests and needs that lay beneath the positions taken and claims made by the parties. Mediators using this method lead the parties through the steps of storytelling, issue identification, interests, options to resolution and settlement.
c) Solution Focused
Mediators using this method focus the parties on their hoped for future outcomes. This approach moves the parties away from diagnosis and review and discussion of the past, in the belief that these discussions tend to fix the parties in the past and stifle resolution.
Please see ‘Links’ for further information.
Many mediators would rather not peg themselves as subscribing to a specific mediation method and would describe themselves as mediating using a variety of methods, as the situation requires. This would be the integrated approach.
For example if the mediator found that the parties could not move ahead using the solution focused method the mediator may adopt features of the interest-based approach as an alternative. While this may seem obvious, it is argued by some that a mediator should adhere to their mediation method if the method is to be truly successful.
Please see ‘Links’ for further information.
e) Party Directed
This method developed at the University of California is concerned with separate pre-mediation coaching of each disputing party about effective dispute resolution and preparing them for a constructive discussion in mediation. The mediator’s role is coach and listener who then takes a hands off approach when the parties meet for their mediation discussion.
Please see ‘Links’ for further information.
The Insight Mediator sees mediation as an educational process for the disputing parties as the mediator assists the parties in understanding what is important to them in the dispute and understanding what is important to the other party. This is one element of Insight Mediation, one other being the focus on the ‘future best hope’ of each party.
Please see ‘Links’ for further information.
Transformative Mediation focuses on supporting the disputing parties with interventions that empower and give recognition to them. This method holds to the belief that parties, once so empowered and recognized, interact more effectively and are enabled to resolve their own differences.
Please see ‘Links’ for further information.
Please feel free to contact me if I can assist you in your assessment of the Mediation Methods.
Lead* v Follow*
‘Lead’ in this context refers to activities of the mediator that have the intent of moving the parties in a direction.‘Follow’ in this context refers to activities of the mediator that follow the dialogue of the parties and are not intended to move the parties in a direction.Lead* or Follow* does not refer to the level of activity of the mediator. Nor can the level of activity be equated to the number of interventions. Active listening, for example, may not involve active intervention.
4) Ethics and Code of Conduct.
Following are the Ethics and Codes of Conduct that I subscribe to as a member of the ADR Institute and a off- roster mediator with the Ontario Mandatory Mediation Program.
OMMP Ontario Mandatory Mediation Program Code and Ethics
ADRIO Alternative Dispute Resolution Institute of Ontario Code and Ethics
5) Agreement to Mediate
It is customary and well advised for all parties in mediation and their counsel and the mediator to sign an Agreement to Mediate. The ‘Agreement’ addresses among other things , the requirement for confidentiality.
Please Click here to review an example ‘Agreement to Mediate’.
6) What you should know about conflict – A)Nature of Conflict , B)Attribution Theory
A) The Nature of Conflict
While there are a number of ways that conflict is categorized in the dispute resolution field I see the following three categories as providing a useful framework for understanding.
a) different perspectives of the same situation
b) differing beliefs and values
c) different goals and interests
It is possible to have no disputes arising out of the differences in each of the three categories and it is only when there is a threat or perceived threat to what we care about does a dispute arise.
Advocates of the Insight Mediation Method understand conflict to emerge when what matters to us is experienced by others as a threat to what matters to them. It is the experience and certainty of the threat that creates the defend–attack patterns of interaction that characterize conflict. Values and cares in the Insight Method exist at three interdependent and hierarchical levels.
1) At the first level are interests, needs and desires, including identity.
2) The second level of values holds our expectations of normative patterns of interaction.
3) At the third level of values are the criteria we use to distinguish right from wrong and good from bad.
Conflicts arise when we experience a threat to our desires, expected patterns of interaction, and our sense of right and wrong. More simply, it arises when we experience threats to our cares. And they take hold when our response to the experience of threat is to, defend ourselves through flight-or-fight actions, and when these defend responses are experienced by others as an attack on them.
As a consequence, it is difficult for parties to be open to learning about the other and also about themselves because there resides within them a certainty of knowing the other as a threat.
B) Attribtion Theory in Conflict – Errors in perception
A fundamental dynamic occurring in all conflict and disputes is the attribution of motives to the other party and to yourself. Your motives are justifiable and the motives or interests of the other party are flawed. This process of attribution provides some understanding and comfort to each party
Fundamental Attribution Error, a term coined by Franz Heider in 1958, provides an excellent theory for understanding how two parties to a dispute can come to see the same issue in very different terms. Heider believed that people have an innate need to explain the behavior of others—and the behavior of themselves—in order to make sense of their extremely complex environments and maintain a sense of power and control. He further posited that such explanations fall into two categories: internal (dispositional) and external (situational) attributions.
Internal or dispositional attributions occur when a person’s behavior is attributed to internal characteristics (e.g., personality traits, beliefs, and choices),For example, if a colleague is frequently late you may attribute this to their lack of organization, inattentiveness, or simply not caring about deadlines.
Whereas external or situational attributions occur when behavior is attributed to something outside of a person’s control (e.g., traffic, deadlines, and other environmental dynamics). In the above example the lateness may be due to an unreliable car,childcare challenges etc.
Heider noticed that people tend to attribute other people’s behavior to internal characteristics, and their own behavior to external characteristics—and thus the concept of Fundamental Attribution Error was born.
And therefore we hold the other party in the dispute to a higher standard of expectations than ourselves.This can result in an escalation or spiralling of the conflict as the other party fails to meet our expectation and we conclude it is because the other party is dispositionally flawed.
7) Choosing a Mediator
No two mediators will approach your dispute the same. It is important that you know the background of the individual who will be assisting you with your dispute and this can be determined relatively easily by asking the following questions.
Q 1) How long have you been mediating and how many cases have you mediated?
Q 2) What training have your received in mediation and dispute resolution?
Q 3) Do you have a mediation speciality?
Q 4) What mediation methodology do you use?
Q 5) Do you hold any mediation designations or certifications?
Q 6) Are you recognized on any mediation rosters?
As the mediation profession is not regulated no qualifications or standards exist as would in a regulated profession. There are however certain benchmark standards that have developed by virtue of the qualifications and requirements set by agencies that are consumers of mediation services and by organizations and associations specializing in mediation and dispute resolution.
Examples of these are
A) The Ontario Mandatory Mediation Program (OMMP) which sets requirements for mediators to be eligible for the OMMP roster. The requiremenst consist of experience, training in mediation, educational background, familiarity with the civil justice system and references.
The ADR of Canada is a national association of dispute resolution professionals and this organization issues designations for mediators based on the ADR’s own criteria. These designations are Chartered Mediator –Cmed and Qualified Mediator – QMed
The ADR stipulates that members with a CMed and QMed must maintain their levels of qualification by complying with the ADR requirements and must requalify every three years.
C) Family Mediation Canada (FMC)
Family mediation is a specialized area of mediation. There are a number of certifications offered by FMC to address the particular requirements of family disputes. In some family mediation cases it is a requirement that the mediator have certification.
D) Local Mediation Associations
There are a number of local Mediation Associations that maintain a roster of local qualified mediators. Choosing a local mediator has its obvious advantages.