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Mediation Is an Effective Option When It Works: Part II

By Dr. Gary Deel, Ph.D., J.D.
Faculty Director, School of Business, American Public University

Note: This is the second article in a four-part series on mediation alternatives.

Mediation is one of the most popular forms of alternative dispute resolution. In Part I, we discussed the basic definition of mediation as well as the different forms in which it is often used. Now, it is important to discuss the five basic stages of the mediation process.

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The Five Basic Stages of the Mediation Process

Regardless of which type of mediation is employed, there are five stages will exist in every proceeding:

1. Initial Contact and Convening: This step involves arranging the mediation itself. Unless mediation is court-ordered and the mediator is court-appointed (as with triage mediation), the parties must agree to mediation, the mediator, and the time and place for the conference. If one party unilaterally approaches a mediator for his or her services, the other party must obviously be contacted and given the opportunity to consent or reject.

2. Opening and Introduction: In the opening session, the mediator explains the process, sets ground rules for dialogue and addresses any contractual obligations for the mediation service. This is an opportunity to break the ice between the disputants and the mediator, and also to begin to reframe opposing views as mutual problems to be solved for the betterment of both parties.

3. Communication: In the communication stage, the issues at hand must be fully aired and reconstructed in such a way that they are as objective as possible. This may involve facilitative techniques aimed at encouraging the parties to recognize the positions of their opponents, as well as the causes of the conflict.

If any complex issues require clarification, this is the stage when experts or consultants would participate to provide needed context. Often, this stage also involves a narrowing of focus by itemizing lists of elements upon which the parties agree and disagree; it’s also the time for dissuading the parties from launching personal attacks or pursuing dysfunctional conflicts that detract from the material issues.

4. Negotiation: In the negotiation stage, mediators develop a list of possible resolutions and work with the parties to determine which options are mutually acceptable and which are not. The mediator must consider each option and handle them impartially and neutrally so as to maintain trust in the integrity of the process. This stage may also involve scrutinizing the legal strength of each party’s arguments for the sake of encouraging a compromise.

5. Closure: In the closure stage, mediators conclude the affairs of the mediation process in accordance with their design and outcome. If the outcome is intended to be legally binding, the mediator will normally draft the agreement into a formal contract to be signed by all parties.

If, on the other hand, the outcome is not intended to be legally binding, the mediator will typically put the details in a memorandum of settlement. If no agreement was reached, then the mediator usually reviews with the parties the successes and failures of the process, and advises them as to available next steps.

One concern that comes up in the mediation process is confidentiality. Confidentiality can be a nebulous subject in any alternative dispute resolution context, not least of which in mediation.

In Many Mediations, the Disputants either Are Ready to Sue or Have Sued and Are Engaged in Mediation under Court Order

The reality of many mediation situations is that disputants either are ready to sue, or already have sued and are engaged in mediation under court order. In a typical litigation process, the discovery stage involves vigorous fact-finding by both sides in hopes of gathering useful evidence for trial. So it is easy to understand why parties attending mediation might be apprehensive about disclosing any information that might otherwise be protected by the formal rules of evidence in a court system.

However, mediation isn’t likely to be effective if the disputants are more concerned with secrecy and their own defense than they are with reaching a mutually acceptable compromise. As a result, the federal court system and many state jurisdictions have adopted rules of evidence which provide that any discussions held in furtherance of negotiation or settlement — a category in which all mediation proceedings clearly fall — cannot be used in court should such negotiations fail and the matter subsequently goes to trial.

There are, however, several ways in which such confidentiality privileges may be waived or otherwise overridden. If the parties consent to the release of such information, this is typically an acceptable means. But the consent must be mutual; a unilateral desire to publicize mediation information will not suffice.

Additionally, some scholars might argue that mediators also have the right to object to a confidentiality waiver on the grounds that their testimony might later be used in court as evidence to favor one disputant or the other. Whether or not mediators can legally prevent parties from waiving confidentiality is unclear, and rules vary by jurisdiction.

Another important exception to normal confidentiality practice is the public policy that safety and crime deterrence take priority over such privileges. For example, if a disputant discloses during mediation that he or she has committed a crime or intends to commit a crime, this type of divulgence is usually exempt from confidentiality restrictions. The reasoning is that society values the preservation of order and public safety over an individual’s right to privacy.

There are obviously strong implications here of Fifth Amendment self-incrimination violations. However, these arguments are diluted by the fact that mediation is usually a voluntary process.

Rules and Principles of Ethical Mediation Are Still in an Early State of Evolution

Despite this solid procedural foundation, the rules and principles regarding the ethical practice of mediation are still in a relatively early state of evolution. Few mediation parameters are codified by law and there is little consistency among court systems on many of these issues.

Thus, it is important that conflict resolution professionals keep in mind that mediation practice is a fluid art. The actual legality of different methods may depend on the laws and customs in one’s own jurisdiction. As one of my favorite law school professors used to tell us repeatedly, the answer to almost any legal question a person can ask is “it depends.”

In the next part of this series, we’ll look at ethical issues arising from voluntary versus mandatory mediation and the duties of different participants in the process.

About the Author

Dr. Gary Deel is a Faculty Director with the School of Business at American Public University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Public University, the University of Central Florida, Colorado State University and others.

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