“When I mediate … disputes, I am committed to a process in which the disputants accept full responsibility for deciding whether the conflict will be resolved. This model requires that the parties participation be entirely voluntary and the neutral’s role entirely non-coercive. A common occupational hazard for mediators is getting hooked into taking responsibility for finding a solution … I have to constantly remind myself that this is the parties’ dispute, not mine. My responsibility is to help the parties better understand each other and their predicament, and then fashion their own solution … If a neutral makes the decision, they have no opportunity to learn.” – Robert Mnookin, Bargaining with the Devil: When to Negotiate, When to Fight 237 (2010)
How does the role of a mediator differ from that of an arbitrator?
In contrast to a judge or arbitrator, who decides disputed issues based on the evidence and the applicable law, the mediator’s role is to explore options with the parties to find a mutually acceptable resolution that is based on their interests and their freedom to choose an outcome oriented as much to their future as to their past conduct. Check out the Checklist – Advantages of Mediation vs International Arbitration. If the parties reach a mutually acceptable resolution, it is recorded in an enforceable contract.
How do I perform as a mediator?
As a mediator, my function is to help the parties explore options for mutual gain and find a mutually acceptable resolution. I normally start by listening and building rapport. Then I help them explore and better understand their interests and develop options, based on that understanding, which can lead to a mutually acceptable resolution. With training in mediation and experience in the mediation process providing the necessary skills to serve the parties effectively, I identify key issues, keep the parties focused on their interests, ask targeted questions about the reality of what they are seeking, and brainstorm with them about options for mutual gain as a trustworthy intermediary. If requested, I am prepared to be evaluative and suggest options for settlement. See IMI Code of Professional Conduct.
My IDR experience makes me a strong believer in the value of mediation IF the parties are open to consider “Getting to Yes: Negotiating Agreement Without Giving In” and are willing to engage a skilled mediator in a cooperative effort to seek a mutually acceptable resolution of their dispute — without the costs and delays of litigation or arbitration. I am committed to working with all parties for a mutually acceptable resolution.
How can a party assess whether mediation is more effective than litigation, arbitration, expert determination or dispute board for resolving a specific dispute?
Please check out the following tools of International Mediation Institute (“IMI”).
- “Olé” online dispute analysis tool to evaluate options for a specific dispute.
- “Decision Tree” guidance for parties choosing mediation on how to set it up.
- Sample Mediation Clauses.
- “Resolution through mediation: Solving a Complex International Business Problem video”.
How can parties choosing mediation find help for starting and completing the mediation process?
Please check out Core Solutions Group’s “Helpful Documents,” e.g., “Draft Agreement to Mediate.”