At Mediate Ireland 90% of all mediations we have engaged in have taken only 1 Day. This comes as a surprise to many who feel that “the issues they have been dealing with for so long, can’t possibly be sorted out in such a short time”. All mediators at Mediate Ireland are trained in advanced, and in some cases unique, techniques in Mediation which accelerate the mediation process.
This article explores some of these techniques, which enable a successful One Day Mediation.
Caucus mediation begins either with all the parties together in conference or in separate rooms from the start. We have found that separate rooms at the start of Family Mediations is particularly productive. Opening statements are made by the parties or their representatives after the mediator has introduced himself and the process. Thereafter the parties remain separate and the mediator then shuttles back and forth between them and conducts private sessions called “caucuses.” This caucusing continues until the case is settled, or if the case is not settled, on whether and how the process is to continue. Caucus Mediation is best for the avoidance of adversarial and confrontational methods of persuasion and allows the introduction of peacemaker techniques that can help the parties find not only resolution, but conciliation, peace, and healing. It is suggested that the mediator is more than a dispute resolver; s/he seeks to be a peacemaker and everything s/he does should lead to the establishment of peace and healing between the parties.
The whole process is designed to be a kinder, more user-friendly approach to resolution. It literally is the opposite of the courtroom trial and of adversarial “mediation”/settlement where the mediator/referee takes on the role of devil’s advocate. In both the courtroom and adversarial/settlement situation, the parties are fighting with each other to win. They are not on the same side seeking a common resolution that both can accept. In the courtroom, the goal is to impeach, discredit, and undermine the opponent to make him a loser. In peacemaking, the goal is to be supportive of the opponent to make him a winner so that there can be a winning result for both sides – there can be no mediated agreement unless both sides sign it. The courtroom battle, as well as the adversarial/settlement process, leaves all participants and legal representatives mentally bruised and scarred, whereas non-adversarial mediation permits the parties to find a sense of peace and closure, and, indeed, can facilitate a healing of the wounds.
The mediator-peacemaker is trained to be supportive and to work with both the parties and lawyers and not confront them or put them on the defensive. Instead of playing devil’s advocate, the peacemaker-mediator seeks to build rapport and trust with all concerned. When the parties feel the mediator is truly interested in them and in the resolution of the case on the fairest terms possible for all, it is far less difficult for them to compromise. It is this final compromise that closes the gap to resolution.
Body Language – What the parties are really saying
The mediator-peacemaker is trained in the art of resolving disputes. S/he learns to read body language and can identify whether a verbal “no” is really a silent “maybe” or a disguised “yes.” Family Mediation or Commercial Mediation is an intensive insight-oriented process, which can be developed through training and experience. The mediators who have been most successful are those who have developed and honed these insights to the point that they can successfully read the parties and handle any surprise or contingency.
Confidentially in the Caucus Process
Through the confidential caucus, at which the mediator can speak in confidence with each side, s/he is positioned to gain information about the case unavailable to a judge, jury, or arbitrator. S/he can ask each party and their solicitors and barristers what their weaknesses are in their case or the concerns they have about their case. The mediator can also ask each lawyer what he believes would happen in court in both the best and worst case scenarios. When both sides have answered these inquiries, the mediator has a unique perspective and understanding of the case. S/he is in a position to give guidance to a meaningful and fair settlement.
Generally, knowing that the information sought will be kept confidential from the other side, lawyers will discuss candidly their weaknesses and concerns and how they evaluate the case. The responses given are normally shorn of advocacy, rhetoric, and the emotional factors lawyers employ in front of judge, jury, or arbitrator (or client!). Through the process, the mediator can quickly get to the heart and real merits of the case.
The art of Peacemaking
The peacemaking process encourages a spirit of cooperation, which grows as the mediation progresses. This is the opposite of what occurs in the courtroom where the parties are adversaries. Rather than coming to the table with the intent of winning, the parties approach mediation with the goals of compromising and finding resolution. As the family or commercial mediation progresses, the parties and lawyers have a growing investment in terms of time and money in a successful outcome. Because of this investment that the parties have in the process and their expectancy of success, momentum is generated, which grows as the mediation progresses. Caught up in the momentum, the parties are encouraged to compromise further. Many times, because of the investment, the parties will settle on terms which they never would have considered when the mediation began. An experienced mediator will feel the momentum and recognize that a case will settle long before the parties recognize it.
An important advantage of mediation is that all parties, with or without lawyers, are present in the same building (though not necessarily in the same room) at the same time and for the same purpose. It is helpful for the mediator to be able to speak to each party and directly and convey messages or information back and forth between the participants. If a question is raised or a point made, the mediator can immediately go to the other caucus room for clarification and/or a response. There are no delays.
Moving towards Agreement
By communicating back and forth between the parties, the mediator is able to narrow the issues to those which will be determinative of the outcome of the case. At times a party will realize that a point, once considered significant, is no longer of such importance and that it must be re-evaluated. If a new point is raised, the mediator can weigh the reaction of the other side.
With multiple defendants or plaintiffs, there is simply no other way to have meaningful negotiations other than to have them all it the same place at the same time. Many times the mediator must piece together a settlement proposal with each party providing its input. To try to do this by telephone or by some other process is unrealistic. Too much time is consumed and momentum is lost.
This momentum has been generated by using the mediator’s training and experience in the creation of rapport enabling all sides to go beyond the issues as first presented by or on behalf of the parties and establish their real underlying interests and needs. This happens on the basis and in an atmosphere of absolute of absolute confidentiality and thus the process creates its own momentum.
The conclusion of this article next month will begin with further consideration of confidentiality.
If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 087-2268394 to discuss your requirements or organize a mediation.
For more information on our mediation services CLICK HERE
Mediation Advocacy Training
Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.
For more information on our training programs CLICK HERE