Non-Decisional Processes - Mediation

Nature of Mediation

Mediation is a form of assisted, structured, problem solving, negotiation process.  It is an excellent process for resolving most types of dispute and conflict.  It is also highly effective at producing mutually acceptable outcomes when there are competing interests AND an underlying need to resolve the clash amicably, rather than by winning a contest of wills, or resources.

The mediator guides individuals, groups, organisations and businesses ("parties") through the mediation process.  The main objective is to resolve the dispute or problem constructively and to record the agreement(s) reached in a document that is regarded by all parties as being both morally and legally binding on them.

Mediation is easily the most widely used dispute resolution process in Australia - mainly because it is both so flexible and so effective.  For over fifteen years we have ourselves consistently achieved successful outcomes in over 90% of our mediations.

In skilled hands, Mediation addresses and removes the causes of conflict, thereby repairing, or at least dignifying, the damaged relationships that are at the core of all disputes.  Contrast this with adversarial processes such as litigation, which is designed specifically to deal only with the symptoms of conflict (ie: breaches of the law).   The difference is critical when long-term family, friendship, commercial, business or customer relationships are involved.

Most Australian courts and tribunals now regard mediation as an important and efficient dispute resolution process.  Perhaps it's the ultimate irony that, after submitting to much of the stress and expense of preparing for trial, many courts now require parties to mediate before they allow them their day in court!

Our Mediation Processes

The literature suggests a bewildering array of mediation process models, based on a variety of applied principles and philosophies.  Our own research, training, teaching and, more than anything else, practical experience of conducting a great many successful mediations over many years, have led us to develop our own signature style of practical mediation.  The two mediation processes we describe below are, therefore, the actual processes we deliver.

Our mediation processes can and have been adapted to suit almost every size and type of dispute, from non-financial family, family business and workplace conflicts to multi-million dollar commercial disputes.

We offer two distinct styles of mediation, building the flexibility to respond to the individual needs of each dispute into the processes themselves.  These processes are:

• Facilitated Mediation and
• Directed Mediation.

Facilitated Mediation

This process follows the “classic” mediation model.  The mediator manages a negotiation process designed to help the parties to develop their own agreement.

The mediator does not express opinions, or make recommendations, although they do help to reality check options and proposals.  Their main role is to maintain order and to provide direction and momentum in the mediation.

Directed Mediation

This is a more robust process than Facilitative Mediation.  The mediator is expected to use his or her professional knowledge, judgment and experience more pro-actively - to express views and opinions and to make suggestions that will help guide, or nudge, the parties towards resolution.

Which Process ?

Our mediators have substantial experience and credibility in the areas in which they mediate.  They are also exceptionally good at gaining the trust and respect of parties and advisers involved in their mediations.  Consequently, most parties choose the Directive Mediation model, with its substantially more pro-active approach. 

Of course, we are equally happy to use a Facilitative process, whenever requested to do so and there is always the option of changing the process in mid-stream, provided all parties agree to do so.

Process Stages

Just as we try to keep things simple with our two types of mediation process, so we believe that each process essentially comprises just four fundamental stages, each of which will be familiar to students of problem solving: 

• Stages (1) and (2) - analyse the problem in the “here and now”.
• Stages (3) and (4) - develop and implement “go-forward” solutions.

Mediation Process Stages:

Example of a Mediation Process

As soon as a dispute is referred to us we conduct an intake session to help us, and the parties, to work out and decide which process, style and mediator are best suited to the matter at hand.  A typical mediation develops as follows:

1. Preliminary contact.  This is usually a telephone or face-to-face contact and may be with one, some, or all of the parties, or their advisers.  We see whether the basic “chemistry” between us is right;  offer and explain process options;  identify information requirements and sources;  identify required outcomes; estimate process time frames and provide estimates of likely costs.
   
2. Preliminary contact with reluctant party(s).   Sometimes, a party to a dispute is resistant to, or even oblivious of, the need to get the problem resolved.  If necessary we make contact, provide explanations and get a preliminary commitment to, at the least, start a dialogue.
   
3. Preliminary Planning Meeting (1 hour).  Used to establish trust in the mediator and commitment to the process.  The parties define and confirm the problem that needs to be resolved, agree their respective information requirements, set the style for the mediation process, agree costs and how to deal with them and commit to a process timetable.
   
   Usually, we involve all the parties in the process from the outset. However, where levels of emotion, aggression or insecurity are very high (eg: family, partnership or workplace conflicts), we may instead initially conduct a series of individual meetings.
   
   We much prefer face-to-face communication, but if that’s not possible we conduct meetings by phone or video conference.  We believe it is essential for us to get a real feel for the people and issues and similarly, for the parties and their advisers to understand us and the way we work.
   
4. The mediation meeting(s).  This is usually a half or a full day meeting.  Alternatively, it may comprise a series of shorter sessions with individual, some or all of the parties (especially in family, family business and workplace conflicts).  The mediator ensures that:
   • All relevant issues are identified, presented and explored.
   • The needs and interests of all parties are validated and acknowledged.  Note that this is not the same as their being accepted.
   • Options and alternatives are generated that could become possible solutions / resolutions.
   • The risks and rewards of adopting the various options and alternatives are considered and evaluated.
   • Solutions, being the perceived best choice option(s) from above, put into some form of workable structure, are agreed by the parties.
   • Finally, when the parties are satisfied that they have arrived at and agreed the best possible mutual solution for their problem or dispute, the mediator helps them to develop a written agreement for signing.  The agreement is, or will become, legally binding.

Benefits of a Dispute Solutions' Mediation

Good mediations are quick, practical, confidential and comprehensible.  

Parties are encouraged to participate in the process.  They usually find this empowering, because they "own" both the solution and the process that got them there.

Mediation solves problems by producing agreed solutions/outcomes.  While it is not always possible to achieve a true "win-win" outcome (perhaps because something has gone seriously wrong so that everybody has to share some of the pain), it is always possible to avoid the sort of "win-lose" outcome that, in so many situations, both commercial and otherwise, makes parties: "win the battle, but lose the war".

When parties participate in mediation voluntarily, Australian and overseas statistics show that over 80% of disputes are resolved satisfactorily.   (Our success rate has been over 90% for many years).  This rate drops to around 50% for court-ordered and other mandatory mediation processes.  Since satisfaction with litigation never exceeds 50% (ie: one party wins, one party loses) we argue, somewhat tongue in cheek, that at least on a statistical (ie: "... damn liars") basis, even a sub-optimal, mandatory mediation produces a better result than a “good” litigation!

As all of our mediations are privately commissioned, we guarantee excellent service, prompt responses and quick results.  Most “simple” disputes are resolved within days or weeks, while “complex” disputes rarely take more than a few months.

We estimate that our mediations require about 10% of the time and cost of running the same dispute through court (eg: a case that would take two years and cost $200,000+ through litigation should be resolved within two months for around $20,000 - total cost).  We have reality checked and re-confirmed this estimate many times over the years with experienced parties and their legal advisers.

Successful mediations produce a real sense of closure.  All interests, issues, needs and concerns can be raised, validated, addressed and resolved - leaving parties with a real sense of relief that the weight hanging over them has finally been lifted  - whether it's been there for days, weeks, months or years. 

A good mediation can be highly cathartic.  Within a relatively safe, controlled and assisted environment, parties see their problems and issues - whether personal, commercial, monetary or otherwise, being acknowledged and validated. Sometimes, especially in family, family business and workplace environments, this happens for the first time in that person’s life!