Introduction
Preparing for Mediation
Understanding Mediation
12 Stages of Mediatior Moves

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INTRODUCTION TO OUR MEDIATION WEBSITE

From time to time on this page, I will review various aspects of the mediation process, its use, success & failures, all in the hope that mediation can be another productive tool in the resolution of conflicts.

I hope you will also take the opportunity to e-mail me your thoughts and ideas about the mediation process as it continues to develop into a viable alternative to dispute resolution.

Currently, the largest uses of Mediation in North Carolina are for cases in the Superior Court, Industrial Commission and domestic matters (the latter I do not do). These cases usually involve issues of litigation and damages and often focus on dollars being paid and received. There are often other very important "drivers" of the parties and attorneys view of the issues, both spoken and unspoken, that need addressing first. These include hurt, vindication, ego, miscommunication, etc. and most importantly, lack of awareness of procedures for exploring interests v. positions.

One of the strongest assets of the mediation process is that it provides an opportunity for the disputants to sit down, face to face, to discuss and explore the issues of conflict. They are in complete control at this juncture (which won’t be the case if mediation fails) and can examine their interest and needs in negotiating a resolution that will be mutually satisfactory and fair.

I will talk with you more about specific aspects of the mediation process but our framework begins with the statute and its rules. A clear understanding facilitates a positive beginning. Therefore, I have provided some direct links to the statutes, appellate decisions, Industrial Commission Rules and Procedures for you convenience.
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PREPARING FOR MEDIATION

I often arrive at the mediation conference without any knowledge of what the case is about. Sometimes, even the style of the case omits some of the parties or even current counsel. Scheduling the conference with the paralegal or secretaries does not fill in these gaps.

A heads-up on the basic issues to be discussed and who will be attending (or absent) often greatly impacts the mediator’s state of mental preparedness and eliminates needless wandering around in the forest until he or she figures it out. Some mediators may prefer to know nothing of the case to foster the presumption of impartiality.

A part of the lawyer’s preparation for mediation should include the mediator. A short written summary of just a phone call to the mediator can greatly enhance the mediator’s preparedness for the issues and the personalities involved.

The art of advocacy is alive and well in mediation. The lawyer must persuade the other side as to the merits and value of the case. Thus, a careful reading here says the central subject is not the mediator, but preparation. And, keep in mind your client, your adversary and the mediator.
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UNDERSTANDING & USING MEDIATION

This is not to help make you a better negotiator but rather to help you and your client make the transition to mediation when it occurs.

You have negotiated cases for years without a mediator. However, in mediation, certain things would not occur when they do and maybe not as efficiently. In mediation, everyone is focused at the same time on the process. Most cases are not cases of first impression and do not have evidence issues, which can’t be predicted with some degree of certainty by experienced lawyers. These cases are good candidates for mediation.

Short checklist for attorney & client in preparing for mediation, and I do mean basic.

  1. Explain mediation & its process

  2. Include all necessary parties
    1. Review case
    2. prioritize issues
    3. strengths & weaknesses
    4. Options if not resolved & impact

  3. Settlement options
    1. Expectations
    2. Monetary & non-monetary remedies
    3. Alternatives

In other words, get prepared, get ready to work & utilize the process (you’ve gotta go anyway).
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TWELVE STAGES OF MEDIATOR MOVES

Stage 1: Establishing Relationship with the Disputing Parties

    • Make initial contacts with the parties
    • Build credibility
    • Promote rapport
    • Educate the parties about the process
    • Increase commitment to the procedure

State 2: Selecting a Strategy to Guide Mediation

    • Assist the parties to assess various approaches to conflict management & resolution
    • Assist the parties in selecting an approach
    • Coordinate the approaches of the parties

Stage 3: Collecting and Analyzing Background Information

    • Collect & analyze relevant data about the people, dynamics, & substance of a conflict
    • Verify accuracy of data
    • Minimize the impact of inaccurate or unavailable data

State 4: Designing a Detailed Plan for Mediation

    • Identify strategies & consequent noncontingent moves that will enable the parties to move toward agreement
    • Identify contingent moves to respond to situations peculiar to the specific conflict

Stage 5: Building Trust & Cooperation

    • Prepare disputants psychological to participate in negotiations on substantive issues
    • Handle strong emotions
    • Check perceptions & minimize effects of stereotypes
    • Build recognition of the legitimacy of the parties & issues
    • Build trust
    • Clarify communications

Stage 6: Beginning of the Mediation Session

    • Open negotiations between the parties
    • Establish an open & positive tone
    • Establish ground rules & behavioral guidelines
    • Assist the parties venting emotions
    • Delimit topic areas & issues for discussion
    • Assist the parties in exploring commitments, salience & influence

Stage 7: Defining Issues and Setting an Agenda

    • Identify broad topic areas of concern to the parties
    • Obtain agreement on the issues to be discussed
    • Determine the sequence for handling the issues

Stage 8: Uncovering Hidden Interests of the Disputing Parties

    • Identify the substantive, procedural, and psychological interests of the parties
    • Educate the parties about each other’s interest

Stage 9: Generating Options for Settlement

    • Develop an awareness among the parties of the need for multiple options
    • Lower commitment to positions or sole alternatives
    • Generate options using either positional or interest-based bargaining

Stage 10: Assessing Options of Settlement

    • Review the interests of the parties
    • Assess how interests can be met by available options
    • Assess the costs and benefits of selecting options

Stage 11: Final Bargaining

    • Reach agreement through incremental convergence of positions, final leaps to package settlements, development of a consensual formula, or establishment of procedural means to reach a substantive agreement

Stage 12: Achieving Formal Settlement

    • Identify procedural steps to operationalize the agreement
    • Establish an evaluation and monitoring procedure
    • Formalize the settlement and create an enforcement and commitment mechanism

Excerpt from THE MEDIATION PROCESS, Christopher W. Moore, 2nd Edition, 1996

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