Wednesday, October 6, 2010

Preparing for a Successful Mediation

by Chuck Doran

A successful mediation will often conclude with both parties thanking me for my efforts and conveying their appreciation for my apparent ability to settle their case. My response to them is “No, mediators don’t settle cases, parties do. Congratulations.”

What determines whether a case will reach resolution? A key factor is whether the parties have thoroughly and systematically prepared for their mediation.

Being prepared means that the parties have thought through in advance of the mediation what they hope to achieve in mediation, including: what is important to each party; what ideas might resolve the situation and what each party might do if they do not resolve the matter with the other person.

Systematic Preparation

Parties to a mediation are like politicians. To be successful, politicians must identify their goals and, for each, articulate a rationale clearly and with conviction. They must find many ways to skin a cat: legislative battles are sometimes won by being pig-headed, but more often they are resolved by understanding and accommodating the interests of others, generating new ideas, and finding win-win solutions.

With these considerations in mind, I ask parties to think about the following questions in advance of the mediation:

1) Interests - What are you hoping to achieve in mediation? What interests, hopes and concerns do you hope to have addressed? What do you think is important to the other person? What do you think is important to both of you?

2) Options - What possible terms can you imagine both of you agreeing on? What would be considered a good outcome for both of you? (These ideas should meet the interests of the parties.)

3) External Standards - What standards of fairness apply to both of you and to your situation? What have other people done when faced with a situation like yours? What precedents, laws, and industry standards and norms apply to the situation.

4) Alternatives - What will you do if you do not reach agreement? It's important that you compare any options that you create together with what you might do if you do not reach agreement (your alternative to an agreement). Similarly, what will the other party do if there is no agreement? (It’s helpful to understand the other party’s best alternative to a negotiated agreement too.)

5) Communication - What messages do you want to send? What messages do you want to have heard? What questions do you have for the other party?

6) Relationship - Is there a relationship between you? If so, should it continue or end? On what terms should it continue or end?

7) Commitment Are you comfortable with the thought that the mediation may conclude with an agreement that works for you but is not necessarily perfect? Depending on the outcome, are you prepared to enter into an agreement? Does the agreement have to be enforceable from your point of view? Do you need to check in with anyone before committing to the agreement?

An Illustrative Example

Before I continue with other suggestions about how to prepare for mediation, it might be helpful to illustrate how some of these questions might be answered by considering a hypothetical situation. Let’s imagine that a student has come to his professor on the day his term paper is due, requesting a two-week extension.

The professor’s interests might include: ensuring fairness for other students, submitting final grades on time, avoiding disruption of her plans, avoiding the appearance of favoritism, helping the student, and respect. There might well be others.

The student’s interests might include: getting a good grade, opening up time to complete requirements for another course, avoiding failure or embarrassment.

Let's look at the connection between interests and options. Options the professor and the student might consider include: a one-week extension based on a reasonable excuse, a two-week extension with penalties such as extra work or a lower grade, and a grade of incomplete and an understanding that the paper would receive a lower grade than it would normally. The strength of an option is how well the option meets their respective interests.

Standards might be what the professor has done in the past, what is customary in the institution, and what is prescribed by a handbook.

Both the professor and the student should understand what their alternatives are if they are unable to reach agreement.

Alternatives that the student might consider include: taking his case to the dean, threatening to expose the professor on the Internet for not working with the student, doing nothing, etc. Knowing their best alternative will provide guidance to both the professor and the student as they consider how to best get their interests met, whether by entering an agreement or by walking away.

Let’s leave that hypothetical now and continue with other preparations for mediation that you might like to consider.

Beyond Preparation - Thoughts on Choosing a Mediator

Choose a mediator acceptable to both parties. Mediators have different styles, expectations about the course and outcome of mediation, and personalities. They should be free of conflicts of interest. Their qualifications – experience as a mediator, subject matter expertise and an understanding of the culture, for example - should also be considered. A case manager at a mediation firm will be able to provide you with mediator biographies to review.

Be sure the right parties are in the room. In a dispute between two faculty members, the dean may be a necessary party, and there are instances where even the president may be the appropriate party (see the interview in this newsletter with Judy Malone above). Senior figures may bring authority or options to the mediation table that others are not able to.

Make sure everyone understands that what is discussed during the mediation is confidential unless parties agree otherwise. This may come as a surprise to those who supervise the parties or who have sponsored the mediation. Confidentiality, aside from certain legal effects, aids the parties in speaking freely and thinking creatively.

Consider your opening statement. Most mediators ask parties to state why they came to mediation and what they are hoping to achieve. Thinking about what you say can help to ensure clarity, completeness, and brevity. I do not recommend reading a prepared statement, however. A party should make every effort to help the other party hear what they are saying, and a written statement, no matter how well read, is less likely to be heard than an oral statement directed to the other party.

Prepare a substantive elements of a negotiating plan using the seven questions above. Based on their interests, parties should consider what proposals they might make at the mediation, developing a principled rationale for each. In doing this, they should keep in mind that the other party's interests will have to be taken into account if an agreement is to be reached. It is therefore important that both parties come to the table having defined their own and their counterpart's interests, and an effective mediator will ask both parties to prepare in this way.

Lastly, it's helpful if both parties attend the mediation with an open mind. It is common for all of us to think of the one best solution, but what is best in one party’s mind my be anathema in another’s. If both parties assert a solution that takes account only of their interests, and stick to their guns, stalemate will almost certainly follow. That’s why it can pay for each party to consider the other’s interests as well as their own. Not only can this lead to agreement, it can sometimes offer a bigger pie to be explored by the parties.

And that brings us full circle to the questions I opened this article with. The more parties prepare in advance of the mediation, the more likely their mediation will be efficient, productive and successful for everyone involved.

Chuck Doran is a mediator, trainer and the Executive Director of Mediation Works Incorporated in Boston, MA. He can be reached at

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