18 Jan Deconstructing the Mediation Process
Although most people think they know something about mediation, it remains a mysterious process to some. Often, people talk about mediation, arbitration, and negotiation almost interchangeably. Sometimes, others may confuse mediation and meditation.
Mediation is the use of an impartial person (the mediator) who facilitates the conversation and helps the parties try and resolve their differences. Unlike a judge, the mediator cannot impose a settlement on the parties. The parties decide in the end whether a settlement is acceptable to them or not.
On the other hand, in a negotiation the parties meet without an impartial person and each side attempts to extract as much advantage as they can from the other side. In arbitration, which can be binding, meaning that the parties must follow the arbitrator’s decision, the arbitrator sits as a “private judge” and after holding an informal hearing, makes a ruling on who is right and who is wrong.
Mediation Intake Process
The process begins when a party contacts the agricultural mediation program. During the initial conversation, we explain the process, answer any questions parties may have and suggest that they watch our video about mediation on our website.
We also ask about the nature of the problem and gather information about the other parties involved in the dispute. Often, after the parties have tried talking to each other informally without resolving the issue, one party suggests they try mediation. If the other party has not yet agreed to mediation, we will talk about how to approach them and provide information about mediation.
Preparation for the Mediation Session
Once all parties have agreed to participate in mediation, the mediator will arrange to speak with each party individually to learn more about the dispute. These in-depth conversations are confidential and enable the mediator to fully understand the nature of the dispute from each side’s perspective. The mediator will also make sure that the parties have the relevant documents that are necessary for a constructive dialogue at the mediation.
In addition to preparing the parties for the mediation, the mediator will also ensure that there is a convenient and “safe space” for the session. That means all parties need to be physically comfortable in the room and emotionally comfortable to express their point of view. Often, we are able to meet in a party’s home, at a local USDA office, or at some other meeting spot suggested by the parties.
Participating in the Mediation Session
At the mediation session, the mediator will have the parties sign our Agreement to Mediate form. Whether you are sitting in a conference room, or around a kitchen table, the mediation process is informal and is designed to create a constructive dialogue.
The mediator will get things rolling by welcoming the parties and explaining the ground rules. Next, the mediator will ask each party to briefly describe the dispute from their perspective and more importantly, how they would like to move forward. At this point, the parties are all together in a “joint session.”
Following the opening remarks, the mediator will facilitate a discussion to help parties clarify the issues, discuss the available information, and determine whether additional information is necessary.
Sometimes the joint session is followed by individual meetings between the mediator and each party. This allows each party to ask any questions and talk privately with the mediator about their goals for the mediation in confidence. Then the parties may reconvene with the mediator in a joint session.
During both joint sessions and individual meetings, the mediator will work with the parties to focus on their “interests” and not their “positions.” A position is a specific action that a person wants to happen. For example, a producer may have a loan on a piece of equipment that he now thinks is defective. His position may be that he wants to exchange it for a brand new model that is more reliable. His interest is why he wants that specific action to happen. In the above example, the producer’s interest is that he needs the equipment to work because he can’t continue to regularly stop work to repair it. There may be multiple ways to satisfy his interests, but there is only one way to satisfy his position.
The mediator will help the parties generate and then evaluate options to see which ones best satisfy all parties’ interests. During this time, the mediator will work to keep the discussions constructive and on track. The mediator will also regularly check in with all parties to make sure they are comfortable with the process and have had an opportunity to express their feelings and ideas.
Depending on the nature of the dispute and the dynamics of the mediation session, the mediator may alternate between joint and individual sessions until the parties have resolved their differences, decided to reconvene for another session, or determined that further mediation would not be constructive. Should an agreement be reached, the mediator will carefully go over it with the parties, and if appropriate, draft it in writing for the parties to review.
In sum, mediation can help parties resolves issues because; 1) it brings the necessary parties together with the common goal of searching for a solution, 2) the mediator works with the parties beforehand and makes sure they are prepared to engage in a constructive dialogue, and 3) the mediator facilitates the discussion and coaches the parties to focus on their interests.