Predictably, my blog draws on my experience as a mediator. Once again, over the last few weeks, I have conducted more than one mediation where time was not taken prior to the mediation to explain to a party what mediation is all about: its process and what to expect. I learn this truth when a party asks me to explain why she is sitting in my office, what is “mediation”; are there any “rules”; and if so, what are they et cetera. Sometimes a party refers to me as a “judge.”

In response, I take the extra time to explain what is mediation and what it is not. I explain the key concepts of confidentiality, voluntariness and self-determination. I explain the processes involved, the difference between joint and separate sessions and that upon reaching a resolution, a settlement agreement will be drafted and executed. As importantly, I explain that in our technological world, mediation is an anachronism. It takes time: settlements do not occur in a nanosecond or with a click of a mouse.

I often find that these mediations do not go as well. Because a party has come to mediation not knowing what to expect, she has not given much thought to the various issues in the matter and how she would like to see them resolved. She not really thought about settlement. As a result, she may not be fully prepared to settle then and there. Often, additional factual information is needed. Consequently, a resolution is not reached in a matter that otherwise should have been resolved.

Time and time again, each of us have had to sit down and mentally think about how to approach something: we plan ahead. We play a mental game of chess. This visualizing needs to occur with mediation. Prior to the actual mediation, each party should learn what mediation is about, what to expect and should think about the issues and the different ways she would best like to see the issues and the whole matter resolved.

By understanding the concept of “mediation” beforehand and being fully prepared for it, a party’s chances for success will be much greater.

. . . Just something to think about.


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