ACTION PLAN FOR MEDIATION

Mediation is a process whereby a neutral third person called a mediator acts to

encourage and facilitate the resolution of a dispute. It is an informal and non-
adversarial parties process with the objective of helping the disputing parties reach a
mutually acceptable and voluntary agreement. In mediation, decision making authority
rests with the parties. The role of the mediator includes, but is not limited to, assisting
the parties in identifying issues, fostering joint problem solving, and exploring
settlement alternatives.
Mediation constitutes one of several diplomatic tools for the prevention and
resolution of conflicts and for confidence-building. Mediation is often the first step on
the road to reconciliation.
There are 9 benefits of mediation, namely:
1. Mediation is a process that focuses on the future and not the past. With
mediation, we do not keep “putting salt on our old wounds.” Instead, we consider ways
of working together to make the future better.
2. Mediation fosters creativity in the resolution of disputes. In litigation, there is
typically a winner and a loser. In mediation, we instead concentrate on a cooperative
win/win strategy wherein all parties can derive benefits. We are free to choose creative
solutions that the legal system simply cannot or will not afford us.
3. Mediation enables us to control the process of communication and dispute
resolution. In litigation, the process is largely dictated by legal rules and procedures.
However, in mediation, we are free to work together and agree on the procedures that
best serve our collective interests. We—not judges—choose the time, manner, and
duration of the process of dispute resolution.
4. Mediation enables us to control the outcome of our disputes. In litigation, the
outcome is determined by a judge or a jury. In mediation, we ourselves control our own
outcome. We ourselves determine the terms of our agreement. In essence, we
ourselves become the judge and the jury.
5. Mediation promotes confidentiality in the process and outcome of dispute
resolution. The process and outcome of litigation are largely open to the public.
Mediation is typically a confidential process, and the outcome can be made private by
the terms of the agreement itself.
6. Mediation facilitates settlement compliance. In mediation, we ourselves
choose the terms of our agreement. Therefore, we are typically more likely to comply
rather than resist because we feel comfortable with the terms of the agreement we
helped create. In litigation, the judgment is imposed upon us. Most of us do not like to
be controlled or have judgments forced upon us. That is one of the reasons why many
cases get appealed.
7. Mediation significantly reduces legal fees and costs. Legal fees and costs are
often unpredictable and often can even exceed the amount in dispute. At the end of the
litigation process, even in victory, our finances could be “in the red.” In mediation, we
typically pay for a set number of hours with a mediator at a set rate. The mediator’s
fees very often tend to be a small fraction of the total fees and costs incurred in
litigation.
8. Mediation significantly reduces opportunity costs and stress. Opportunity costs
are costs we incur because we lose the time or opportunity to do something else.
Litigation can deprive us of many years of our time, effort, peace of mind, and
opportunity. Even if some money is left over once our legal fees and costs are paid,
after adjusting for our opportunity costs and stress, we could very well again be “in the
red.” In mediation, the resolution happens quickly—often in one session or one day!
9. Mediation allows us to maintain our personal or business relationships. In
litigation, because we are adversaries fighting each other, we can severely damage our
personal and business relationships—we are “working against each other.” In
mediation, we are simply trying to communicate and resolve our differences amicably;
we are “working with each other.”

MEDIATION TIPS:

If you are at an impasse in a personal or business dispute, consider the many benefits
of mediation.

Once you make the choice to mediate, commit to the mediation process and proceed
with good faith.

Communicate your desire to mediate to the other party, highlighting the fact that you
would like to work together as a team.

Communicate the many benefits of mediation to the other party.

Work with the other party to jointly select a mediator you are both comfortable with.

Make sure that you select a mediator who is highly skilled in communication because
communication is the foundation of mediation.

Even when we believe that the people we are communicating with are being very
difficult, we should not give up. We can still communicate attractively by respectfully
requesting that we bring in a mediator to help us resolve our issues amicably. A
mediator is typically a neutral third party with no stake in the outcome. A mediator’s
task is to help us voluntarily resolve our differences.
STRATEGIES:

A good mediator uses many strategies and tactics to help the parties reach agreement.
These include:

 Ripeness-Promoting Strategies: strategies to convince people that negotiation

is preferable to continued confrontation.
 Convening Processes: The role of convening is to bring disputants to a
preliminary meeting where they will discuss the issues of a conflict and
consider options for its resolution. Tasks involved include assessing the
conflict situation, identifying key stakeholders and participants, introducing
options for a resolution process, and considering ground rules.
 Conflict Assessment: The process of determining what is going on, who is
involved, what options for resolution might be possible, what procedural
approaches might work.
 Ground Rules: Safe places in communication also tend to be created and
sustained when the ground rules of the encounter are clearly set forth and
agreed upon at the first meeting. Rules such as no interrupting, giving every
participant equal opportunities to speak, and not pressuring individuals to
speak who do not yet feel comfortable doing so are some commonly used
rules.
 Codes of Conduct for Intervenors: Just as ground rules set the codes of
conduct for participants, mediators also have codes of conduct. While some
are negotiated on a case-by-case basis, others are fairly standard and are
specified in various existing documents.
 Sequencing Strategies and Tactics: Mediators dealing with very large social
conflicts have to skillfully manage a very complex and diverse set of
challenges. In order to do that, these people must think about the best way to
order or sequence the issues involved in their conflict. This essay describes
some sequencing models and tactics.
 Creating Safe Spaces for Communication: Due
to misunderstandings, distrust, and prejudice, communication between parties
is often difficult. This essay discusses various obstacles to effective
communication and explores how to create a supportive climate in which
parties feel comfortable discussing their differences.
 Reframing: Parties enter into mediation with their own interpretation of the
problem: what issues are in dispute, why the problem has arisen, and how
best to resolve it. One of the first things a mediator does is to get the parties
to explain their view of the problem so that each side sees how the other is
framing the conflict. The mediator then helps disputants to redefine the way
 they think about the dispute and work toward a common definition of the
problem.
 Option Identification: Option identification is an essential step in the process
of resolving any conflict. Once all parties to the conflict have identified the
issues under contention, they should systematically list ALL options that they
see available to them for advancing their interests. Often this is the most
creative step of the mediation process.
 Focusing on Commonalities: Working towards a solution often requires that
parties both understand their differences and yet focus on their
commonalities. This essay outlines some strategies for locating common
ground.
 Caucus: Caucuses are meetings that mediators hold separately with each
side of a dispute in order to keep mediation moving forward. They can be
called by the mediator or by one of the parties to work out problems that
occur during the process. This essay outlines the basic steps of a caucus and
their role in effective mediation processes. It also discusses the downsides of
caucusing.
 Shuttle Diplomacy: Rather than allowing for the exchange of views and
producing compromise, direct communication between the parties may
sometimes make the situation worse. The essence of shuttle diplomacy is the
use of a third party to convey information back and forth between the parties
in cases where direct communication is likely to be counterproductive.
 Reality Testing: Sometimes parties believe that they have an alternative or
option that is better than what they will get through participating in mediation.
Reality testing involves asking questions about each party's options and
convincing resistant parties that mediation is their best option.
 Costing: Cost-benefit analysis is a matter of analyzing the costs and benefits
of different options to determine what approach or solution to choose. Costing
occurs throughout the mediation process as parties decide whether or not to
participate and choose among settlement possibilities.
 Action-Forcing Mechanisms: These are mechanisms to get parties to move
ahead when one or more of the parties is stalling.
 Establishing Trust in Mediation: One important task for mediators is to build
and maintain the parties' trust of the mediation process, the mediators, and
between the parties themselves. When trust levels are high, parties are less
defensive and more willing to share information with other parties at the
mediation table and in private sessions with the mediator.