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An Insider’s Guide to Hiring a Mediator and the Mediation Process

  • Posted by: Ellen Kandell

People often are tired of conflict and tension, so when they find out I’m a mediator, they’re curious about how the mediation process works. I’ve gathered some of the recent questions I’ve been asked and hope my answers will demystify mediation for my readers.

Do you present evidence in the mediation process?

The short answer to the evidence question is, “No”. Mediation is a facilitated dialogue designed to solve a problem or examine an issue that two or more individuals share. I’ve previously written about the early warning signs for needing mediation assistance.

Unlike a court process people are not sworn in. Testimony is not taken, facts are not determined and evidence is not gathered. Instead, each individual shares their perspectives or narrative about the common problem.

From that the mediator draws out a list of issues and underlying interests that these perspectives have illustrated.  People have an opportunity to be heard and their feelings recognized, respected and acknowledged, quite the opposite of litigation. After that the participants will develop possible solutions for solving the problem.

Unlike a court process where the judge or jury finds facts and assesses veracity of witness testimony, the people in the mediation make decisions about how they want to process the information they receive and what solutions are best for them. In many indigenous communities throughout the world it is the elders that perform the role of mediator.

How do you motivate people to participate in mediation?

Human beings have a natural drive to self-determination. Self-determination is a basic tenet of mediation and is the first of the nine standards of conduct. It is defined as the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome.

Mediation usually works better when both parties agree to participate in mediation and agree on who their mediator is. So when people enter the mediation process they have taken two important steps towards problem solving.  They have agreed to participate in a process and have consensus on the mediator. This is the beginning of resolving their issues.

When people are ordered by a court to attend mediation it’s possible that they may not be as motivated to work through the messy business of sorting out their disagreements or legal issues.  The court may appoint a mediator who the parties have not previously met. If they are intimidated by the court process as many people are they may not trust  the mediator as well as someone who is of their own choosing.

If an impasse occurs I ask parties whether they would rather try to continue negotiating with each other or have a judge make a decision about the issue that impacts their life or their business.  Some people may prefer to gamble.

Do you have a set list of procedures in mediation?

Mediators, like other professionals, have an intake process in which conflicts of interest and other preliminary issues are assessed. The mediation process is explained either at intake or during the first session. At the same time, experienced professional mediators know that the specific circumstances of the situation may require modifications or adaptations of the process. For a list of myths v. facts about mediation click here.

Before mediation at a local non profit the team leader asked me nervously, “How does mediation usually work”? I explained the classic process: mediator’s introduction, storytelling by each side, issue development, brainstorming options, and developing agreement. She seemed satisfied with the response.

An hour later we started the first of two mediation sessions and the textbook description went out the window. If I had run the session as I had outlined it never would have worked.  So the answer to this question, is I have a set list of procedures but I deviate where necessary to meet the needs of the parties.

Ellen F. Kandell is a certified professional mediator and attorney with over 30 years of public and private sector experience.  An expert in dispute resolution and mediation, Ms. Kandell is certified by the International Mediation Institute. She has been a leader in the Montgomery County Bar Association and the Maryland Council for Dispute Resolution. She provides mediation services, group facilitation, neutral evaluation and training to diverse, national clients. Get in touch with her via emailLinkedInTwitter, or give her a call at 301-588-5390.

Author: Ellen Kandell

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