Posted on April 27, 2011

Settle for More . . . Mediate

Are you involved in a conflict with a co-worker? a family member? a client? your boss? Is thinking about the issue causing you stress? Are you uncertain about what to do? If so, try mediation.

What is mediation?

Mediation is a voluntary process in which two or more people involved in a dispute come together with the help of a third-party neutral to find a mutually acceptable, workable resolution. Mediation is based on self determination. That means the parties make all the decisions. The mediator does not make a ruling like a judge or arbitrator would. The mediator also does not take sides, give legal advice, or provide legal representation, counseling or therapy. The mediator’s role is to facilitate the discussion so everyone has an opportunity to say what is important without anyone dominating the conversation.

In Pennsylvania, the confidentiality of what happens or what is said in mediation is protected by law and anything presented during mediation can’t be offered into evidence in a legal proceeding on the matter if you don’t settle in mediation and decide to take the matter to court or arbitration. There are a few exceptions to confidentiality, such as threats of harm to self, others or property.

Mediation can be used to address most civil (non-criminal) conflicts that would otherwise end up in court. Mediators are skilled at facilitating the resolution of interpersonal disputes involving co-workers, employees and employers, business partners, family members and friends.

Don’t Wait, Mediate!

The longer a dispute festers, the more difficult it is to resolve. So, absent a reason to do otherwise, mediate as soon after a dispute arises as practical. When the people involved are willing to come to the mediation table, the dispute is more likely to settle than not. The national settlement rate is 85 percent.

Here are three tips to help you mediate successfully.

Tip#1: Getting the other Party to Agree to Mediate

Only about one-third of the people who want to mediate make it to the mediation table. The reason is the other party refuses to participate. Because the process is usually voluntary (sometimes it is court-ordered), the other party involved in the conflict may be hesitant to mediate. Here are some ways to convince the other party to participate:

  • Have the mediator or Community Mediation Center contact the other party involved: If you use a community mediation center, all you need to do is call the center and request a mediator and the mediation coordinator will contact the responding party. Mediators are experienced in explaining the benefits of mediating and reality testing about what might happen if the dispute is not resolved.
  • Offer to pay the costs: Mediation participants typically split the costs 50-50, but your responding party may not want to pay anything. You could agree to pay all the costs, if they are low enough, or all the costs up to a maximum. Many community mediation centers charge by the session. Most private practitioners charge by the hour.
  • Agrees to mediate on one issue but not another: Agree, because once the party gets to the table and realizes the benefits of mediating, they may become more amenable to listening to other issues.
  • Offer to let the other party choose the mediator: Sometimes it helps to let the other party select the mediator or mediation center (you don’t usually get a choice when you contact a mediation center; the center will assign a mediator to your situation). Or you could suggest that each of you submit a list of three mediators. If you both name the same mediator, that will be the one selected. If not, each of you can interview the other’s choices and cross off one that is not your first choice. That will narrow the pool.

Tip #2: Find a Qualified Mediator

There are no licensing or certification requirements for mediators in Pennsylvania. To find a qualified mediator, ask colleagues or friends for recommendations or call Good Shepherd Mediation Program. Before hiring a mediator, interview several potential mediators so that you will find someone with whom you have a rapport.

Here are some questions to ask:

  • What kind of mediator training have you taken?
  • Tell me about your mediation experience.
  • Do you mediate full time? If not: How long have you been mediating? How many mediations do you typically facilitate in a year?
  • Do you have a mediation specialty? (e.g., employment, family, commercial)
  • What professional associations do you belong to? (e.g., Association for Conflict Resolution, Pennsylvania Council of Mediators)
  • Describe your mediation style?
  • Can you provide me with three references?

Unless your conflict involves complex legal issues, check out Good Shepherd Mediation Program, Philadelphia's local community mediation center. GSMP has strict training and apprenticeship requirements for their mediators – and it may be less expensive than hiring a private mediator.

Beware: There are individuals who hold themselves out as mediators after taking a few hours of training, keep their day job (typically law or therapy), and have not mediated many disputes.

Tip #3: “Fail to prepare, prepare to fail”

Mediation is less formal than going to court, but you still need to prepare for your mediation session to improve your chances of achieving your goals. Here are some things it is prudent to do ahead of time.

  • Gather documents and other items you want to share at the mediation.
  • Decide whether you want anyone else to attend with you. You may not need an attorney, but you may want a support person.
  • Typically, mediation begins with the parties having an opportunity to explain why they are there and what they hope to accomplish. Practice telling your story. If necessary, write it out. Read it back to see if you used any words that might cause the other person to become defensive (e.g., name calling, blaming statements). Put yourself in the other person’s shoes. Then, reframe any negative words into language that won’t cause the other person to become angry and not hear what you are saying.
  • Set your goals. What do you want? How does that differ from what you really need to be satisfied with the result?
  • Think about what you think the other party wants. What might their underlying needs be?
  • Determine your bottom line. What is the minimum for which you would be willing to settle? Keep in mind that your bottom line may shift in mediation if the other person offers something that may not have monetary value, but is important to you all the same. For example, in an employment dispute even though getting your job back may not be possible, getting a nice letter of recommendation is important and has intangible value.
  • Be prepared to offer workable solutions. Generate options that might work; then predict how they might work out. Try to develop plans that would work for all parties involved.

To find out more about mediation, read more articles on this website or call GSMP at 215-843-5413.