Navigating the Mediation Process

• Author: Victoria Pynchon/Joe Kraynak (With)
• Profession: Mediator, author, speaker, negotiation trainer, consultant, and attorney with 25 years of experience in commercial litigation practice/Professional writer who has contributed to numerous For Dummies books
• Pages: 63-82

Chapter 4

Navigating the Mediation Process

In This Chapter

▶ Setting the stage for effective mediation

▶ Identifying the real issues

▶ Addressing each issue in turn

▶ Sealing the deal and getting it in writing

B

efore you can become a master mediator, you have to be a mediator,

which entails navigating the mediation process from point A to point B.

This chapter leads you through the mediation process from start to finish —

from the time someone contacts you to request your services to when the

parties sign off on their agreement.

Convening a Mediation

Convening a mediation means getting the parties to agree to mediation

instead of litigation (or violence!) as the means to resolve their dispute. More

often than not, someone else convenes the mediation before you step in:

✓ Community mediation centers hire skilled conveners who spend a large

part of their day convincing one of the disputants to mediate a claim that

an aggrieved party has brought to the center. If you’re doing community

or private litigated-case mediation, the convener calls you after she’s con-

vened the mediation and asks you to serve as a neutral (mediator).

✓ If you’re on a private mediation panel — such as JAMS, Judicate West, or

ADR Services, Inc. — attorneys who want to retain mediators to help them

settle a litigated case contact the panel’s case manager and request the

services of a specific mediator or ask who the case manager believes is

most qualified to conduct their mediation. Your case manager calls you to

ask for your availability and whether you have any conflicts.

64 Part II: Becoming a Master Mediator

✓ Third parties also convene court-annexed mediations. Often, the court

itself orders a case to mediation or strongly suggests that the parties

hire a third-party neutral to help them settle the matter. Usually, the

attorneys acting under court compulsion or suasion repair to the court’s

alternative dispute resolution (ADR) office to choose a panel mediator

they agree on. The attorneys generally communicate their choice to ADR

office personnel, who provide the necessary paperwork to the chosen

neutral.

Even when someone else convenes a mediation for you, you’re always in the

process of convening the parties. That is, you’re always helping the parties

understand the wisdom of staying in the process long enough to find a solu-

tion to their mutual problem. Even though the parties arrive on the scheduled

date prepared to engage in the process, many still don’t see the value of medi-

ation and have no intention of settling their lawsuit or resolving their dispute.

If you run a solo practice and people contact you directly to request your ser-

vices, you have to convene the mediation yourself and screen their dispute

for appropriateness (not every case is suitable for mediation) and possibly

for issues such as domestic violence or caretaker neglect, as I explain in the

following sections.

Convening a mediation yourself

When a party to a dispute contacts you directly and requests your help in

convening a mediation, you need to do the following:

✓ Gather information about the dispute and the disputants from the

person who contacted you. Find out as much as possible about each of

the following:

 •Thenatureofthedispute.

 •Thequalityoftheparties’relationshipswitheachother.

 •Anyhistoryoftheirattempttoresolvethedispute.

 •Reasonswhytherequestingpartybelievesthedisputecan’tbe

resolved without third-party support.

 •Reasonswhythispartybelievesit’sinherdisputepartner’sbest

interest to resolve the matter. How will resolution improve the

quality of the other party’s life, and what other benefits would flow

from a mediated resolution?

 •Thereluctantparty’sconflictresolutionstyle.Ifthepartieshave

had disputes in the past, how did the disputes unfold, and by what

means were they resolved, if they’ve been resolved? (For more

about conflict resolution styles, see Chapter 8.)