I published Part I of the interview last week, here’s Part II:
WP: What is mediation, and what makes it different from arbitration?
EK: Mediation is a process whereby a neutral third-party facilitates communication between the parties in dispute, so that they can develop options and resolve the dispute themselves. In mediation, the parties make the decision – whereas in arbitration, the arbitrator has authority and decides. Mediation is a much more flexible process than arbitration. Mediation decisions, if they are entered into a court order or are signed by the parties, are binding.
WP: Outside of disputes, how does an expert such as yourself assist companies proactively (i.e. facilitation, strategy, planning, visioning)?
EK: When a business leader needs to be an active participant in an important meeting or when there are strategic issues that need thorough discussion and brainstorming, a neutral facilitator provides assistance with the design and conduct of that discussion. In this way, the executive can be fully engaged in the discussion and not worry about keeping the agenda on schedule or assuring the meeting objectives have been made.
According to the Wharton Center for Applied Research, the average CEO spends 17 hours per week in meetings, senior executives an average of 23 hours, and middle managers 11 hours. And according to senior and middle managers themselves, only 56% of these meetings are productive. These unproductive dialogues translate into millions of dollars of wasted time. An experienced facilitator will work with the leader in making sure that the expected outcomes of the meeting are met and the discussion produces the desired results.
WP: Are all dispute resolution professionals attorneys? And are all of them certified or licensed?
EK: Many dispute resolution professionals are attorneys, although a law degree is not required. State laws govern the qualifications of mediators and arbitrators. Most states don’t limit the practice to attorneys. However, local customs in various jurisdictions may be more limiting than the statutes or court rules. For instance, in Montgomery County Maryland, only attorneys can handle court ordered mediations. There is currently no licensing of mediators, but licensing and certification is a big issue being continually discussed in the dispute resolution field.
WP: What are key characteristics a CEO should look for when selecting a dispute resolution firm or facilitator to address business problems?
EK: Because of the low barriers to entry and the lack of mediator licensing, it is vital to pay close attention in selecting a dispute resolution firm. You should inquire about several factors: training, overall experience, specialized expertise, performance-based certification and references. While the basic requirement in most jurisdictions is 40 hours of training, most experienced mediators have several hundred hours of training.
In addition, you will want to inquire about any specialized expertise, such as health care, psychology, or architecture sector experience, that may be relevant to the dispute. Seasoned dispute resolution professionals should be able to provide references of parties or attorneys who have participated in their mediations. Serving as a reference for a mediator should not in most cases violate the confidentiality of the process. Finally, there are organizations such as the International Mediation Institute (www.imimediation.org) that have performance based systems where parties and advocates can provide feedback on a mediator’s competence.
WP: What else would you suggest every business owner know about the strategic importance of effective conflict management in building a growth-oriented company?
EK: While many people view conflict as negative, there are many positive sides of conflict. It produces growth and change which is often necessary. If you view conflict as an opportunity for learning and development it will serve you in the long run.
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Ellen F. Kandell is a certified professional mediator and attorney with over 30 years of public and private sector experience. She provides mediation, group facilitation and training to diverse, national clients. Get in touch with her via email, LinkedIn, Twitter, or give her a call at 301-588-5390.