Bringing Mediation Home

Lynn P. Cohn

Explaining Mediation

voluntary a private process in which a neutral

party helps people resolve disputes getting two or more emotional people

with a problem to talk with each other

Mediation is:

making decisions for disputants free discovery for an inevitable

arbitration

Explaining Mediation

Mediation is not:

Key Features of Mediation Process

Parties decide to enter the mediation process

Parties can leave the mediation process at any time

Parties decide on the outcome of the dispute

Explaining Mediation

Voluntary

only mediate matters in which she/he can remain impartial

disclose conflicts of interests; following disclosure, may continue if parties agree

honor the principle of self-determination

Explaining Mediation

Neutral, impartial mediator shall:

Key Features of Mediation Process

It is a confidential settlement process. Neither the mediator nor the parties shall

disclose the communications/conduct of the mediation, unless all parties agree (with limited exceptions).

Explaining Mediation

Confidential

Key Features of Mediation Process

Quick Low cost Flexible process Maintains/improves relationships Gets parties to come together/talk

Explaining MediationWhy Mediation Works

Improves poor communication/resolves misunderstanding

Discovers/addresses the true interests of parties Moves beyond different views of law/fact Allows creative solutions beyond win/lose Disputes settle Parties do not give up right to arbitrate

Explaining MediationWhy Mediation Works

Precedent desired No relationship and cheaper to contest the claim Vindication/punishment remains main objective Jackpot syndrome (maximize/minimize

recovery)

Explaining MediationWhen Mediation Will Not Work

Mediation Versus Arbitration Mediation and arbitration are private Mediation and arbitration both involve the

assistance of a trained neutral Mediation is cheaper than arbitration Mediation is faster than arbitration Mediation offers a wide range of solutions,

unlike arbitration

Explaining Mediation

Mediation allows parties to control the outcome, unlike arbitration

Mediation may maintain/improve the relationship, unlike arbitration

Arbitration ensures certain closure, unlike mediation

Explaining Mediation

Mediation Versus Arbitration

Explain the process at their level. Find out what the concern is, and address it. Explain options if case does not settle. If available, offer data about

success/satisfaction. Give a hesitant party some (but not too much)

time. Let them decide.

Selling Parties On Mediation

Establishing a Panel of Mediators

skill with mediation process substantive knowledge reputation for fairness

Select mediators based on:

Key Components of a Mediator Training Program Mediation demonstration Simulations, simulations, simulations! Communication skills Negotiation skills Mediation strategies

Establishing a Panel of Mediators

Establishing a Panel of Mediators

Ethical concerns Feedback Procuring cause Opportunities to refresh skills over time

Key Components of a Mediator Training Program

Establishing a Panel of Mediators

Alternatives to Setting Up Own Training Send students to general mediation

skills training Connect to mediation panels for

court programs

Model

Training manual

Forms

Disk

Materials

Quality control surveys

Database

Report to NAR

Data Collection