The Intent of Mediation is an Agreeable Resolution

The Intent of Mediation is an Agreeable Resolution

8 Rules For A Successful Mediation

There is nothing more certain in life than at some stages of our journey will see conflict arise. Conflict however, is similar to our nervous system and a signal of pain. Conflict simply tells us that there is a problem that requires attention. Though how do we navigate our way through that pain when there are others involved. The answer is mediation. Though effective mediation requires some rules that all parties must agree to in order to come to a point of acceptance and ideally, agreement.

Why ‘Pride’ Has No Place in Mediation

Though, before we provide those rules, let us first give you some understanding of human psychology. Human beings like to appear as intelligent and logical. Why? Because it keeps us within a social hierarchy; a pecking order; our place in the tribe. We don’t like to fall down that social hierarchy, so we engage pride. Pride is an ever-vigilant protector of our social standing and intelligence; a kitten, appearing like a tiger. Though pride is cancer to agreement and it is one trait that must be left outside of the door in mediation. Keeping an open mind; an open heart and a desire for resolution is more desirable to pride. Though this takes conscious effort on your part. After-all, you do want to resolve this issue don’t you?

We Are Emotional Beings Pretending To Be Intelligent People

We humans like to think of ourselves as intelligent, though the first time we fall in love highlights how foolish we can be when our emotions take hold. Don’t get us wrong, love isn’t bad. It’s just not logical because it’s an emotion. Now think to a phobia you might have. A fear of spiders, snakes, deep water or even phobophobia; a fear of fear itself. Phobias don’t make intelligent sense, because they’re not logical. They are emotional or correctly, an irrational feeling or a tightly wound neurological connection that is difficult to unravel – without therapy. So please understand that prior to mediation, your feelings may have been hurt. You may have become upset or emotionally triggered by something that someone said or did.

Finally, Be At Cause Not At Effect

A key understanding that helps us to progress and move on with our lives is being ‘at cause.’ While being at cause in ones’ life means that the world does things for you. Versus being ‘at effect’ suggests that the world is against you. Another way to look at this is do you get results (at cause) or do you have reasons for not getting results (at effect).

While we can’t be responsible for other people or other people’s decisions, we can be totally ‘at cause’ for ourselves. In mediation, it is best to be at cause. Manage your emotions and be patient with yourself and let others speak fully. Though when you speak, remember, mediation isn’t a therapy session, nor is it about venting and having your say – you are not a victim (at effect). The intention is to get to a resolution. So be ‘at cause’ and do not allow yourself to go into a victim mentality and don’t make anyone else out to be the victim either. This takes courage, patience and some wisdom too.

Mediation: 8 Rules for Success

Mediation is a form of alternative dispute resolution that can be used in most non-criminal cases, including disputes involving contracts, leases, small businesses, employment, child custody, and divorce. In a successful mediation, all interested parties work cooperatively toward a settlement or fair resolution of their dispute, with the help of a neutral mediator who facilitates the process. So what are the keys to keeping your mediation on the path toward a fair and agreeable resolution? Here are ten rules to follow. 

Rule 1: The Decision Makers Must Participate.

Who is a decision maker? This seems like an easy question. When a party in a lawsuit is an individual person, then that person is the decision maker. But when a party is a business or other entity, the answer is less clear. When it comes to businesses and other entities involved in a mediation, the person who needs to participate is someone who has the power to accept any offer of resolution made by the other party.

In a family dispute, it is important that all people who enable the dispute to end, all participate.

Participating in a mediation means being personally involved in all of the events that occur during any mediation session, getting the opportunity to gain a realistic understanding of the dispute, and having the chance to voice opinions and concerns. The best form of participation is physical presence, but participating in a mediation by videoconference (Zoom) or speakerphone may be appropriate when physical presence isn’t possible. Who should also be invited to the mediation – but be mindful, this is not stacking the numbers against the other party or parties?

Rule 2: The Important Documents Must Be Physically Present.

Mediation involves working through the differences of opinion about a dispute, and documents can be invaluable in achieving that goal. For example, in a dispute between a homeowners association and a condominium owner, it is important to have the covenants, conditions, and restrictions physically present at a mediation session. And in a dispute between an insurance company and a policy holder, it’s important to have the policies present. In a family dispute, you may require any Wills or Agreements to be present. Are there any documents that should be present?

Rule 3: Be Right, but Only to a Point. This is not about winning, but resolving.

In every dispute, every party typically believes their position is the right one. In a mediation, the question “Who is right?”— that is, who is likely to ultimately prevail if a resolution isn’t reached and mediation is followed by a lawsuit—is important because realistically predicting the chances for ultimate success defines which of the options for resolution are realistic. However, parties in a mediation should not focus exclusively on demonstrating that they are right (or more right than the other side) because this tactic rarely does much to bring about resolution. Remember, the intention is for a resolution, not to win a battle.

Rule 4: Build a Deal Before You Come or Create One.

In a fight, the goal is to win. But fighting involves pursuing your own demands without regard for the effect on your opponent. And fighting requires a significant expenditure of effort in resisting your opponent’s moves.

In mediation, the goal is resolution. Achieving resolution requires a significant expenditure of effort toward finding options that will satisfy both parties. Finding options that satisfy both parties is much like building a deal in a commercial context. It must work for both parties or else there is no deal. So in mediation you should be concerned not just with your own interests, but also with the interests of your opponent. Think about a solution that would resolve the issue for all parties – before you attend mediation.

Rule 5: Treat the Other Party with Respect.

Consent (agreement) is essential to any deal that is made in mediation. A party who has been insulted is not usually inclined to give consent. And a party who is feeling disrespected tends to be distracted by this to the exclusion of all else, which is counterproductive to the mediation process. This is not a matter of “making nice.” It is a matter of avoiding mindless or gratuitous disrespect. Think sometimes with your heart and not your head.

Rule 6: Be a Problem Solver for Interests.

In achieving resolution, the task is to reconcile interests. Options must be identified or created, and those options must allow both parties to achieve enough of their interests that the options are better than no deal at all.

Reconciling interests requires problem solving, and problem solving requires creativity and an open mind. A good technique for generating this type of open thought is brainstorming, which is a process in which parties identify every idea they can think of to reconcile the interests. No idea is rejected or criticised, and ideas can build on one another. The better ideas usually come late in the process, after people believe they have run out of ideas. Once a number of options are identified, then the parties can evaluate them and select those that result in the maximum benefits for each party.

Rule 7: Work Past Anger – 12 Second Cooling Off.

At some point in the mediation process, the parties begin to understand that perhaps they are not “most right” about the substance of the dispute, or that they will need to take less (or give more) in order to make a mutually acceptable deal. When this happens, the parties often start to get frustrated, and then angry. Many parties believe that their own anger is a sign that things are not going well and that they should stop the mediation. This is incorrect. A deal can still be achieved if the parties can consent to a resolution that satisfies their interests better than having no deal. Developing such an option is work that can continue even if—and in part because—the parties understand that they will not get everything they initially demanded. Should tempers flare up, the mediator will ask you to take a 12 second break and instruct you to breath two six-second breaths – one in and one out. There is actual science behind this. This breathing pattern balances out your parasympathetic and sympathetic nervous system.

Rule 8: Be Patient with One Another.

Mediation involves change. Parties in a dispute typically believe they are right (and most right) about the dispute. Each side may or may not understand their own interests and those of the other party, and each may have unrealistic expectations. Each party may be unwilling to treat the other with any degree of respect. It takes time to address these issues, and it takes time for people to change their minds. It is important for parties in mediation to allow time for these changes to occur. Of these eight rules for a successful mediation, this one is the most important.

R!k Schnabel is not only Australia’s #1 Brain Untrainer and teaches company executives how to be confident communicators. He is a Master NLP and Life Coach trainer, Coach and an international, multi-best-selling author with Life Beyond Limits. – he will help you to resolve your issues and mediate a successful resolution.