30 May 2009

Mediation: A New Way of Working

By Thorns Craven

Mediation and mediators are featured in the news almost daily. Mediators are dispatched to the Middle East and other trouble spots around the world to assist battling nations. Mediators are called in to help negotiate labor disputes between management and labor. Mediators are even being used in schools to assist students in working out personal differences. Most of us are familiar with the traditional forums for settling a dispute: Judges do this in courts; arbitrators issue rulings; and licensing boards make decisions.

We also are familiar with helping clients negotiate a deal, arriving at a mutually acceptable contract. And we are unfortunately familiar with situations where a deal goes sour, or a misunderstanding occurs, or inaccurate information is relied upon by someone, and the matter escalates until one or more parties feels aggrieved and takes that grievance into the administrative or judicial system.

At that point, you may have said, as many have, “There must be a better way.”

A Better Way

Many of us involved in mediation think that the better way has been invented, and it’s called mediation. NCAR members are about to discover that many of the daily conflicts which have occurred and will continue to occur in the course of doing business will have better outcomes because REALTORS® are about to adopt mediation as a way of resolving those conflicts.

Why is mediation a better way? Let me quote from the preamble to the Standards of Professional Conduct adopted by the North Carolina Dispute Resolution Commission on May 10, 1996:

Mediation is a process in which an impartial person, a mediator, works with disputing parties to help them explore settlement, reconciliation, and understanding among them. In mediation, the primary responsibility for the resolution of a dispute rests with the parties. The mediator’s role is to facilitate communication and recognition among the parties and to encourage and assist the parties in deciding how and on what terms to resolve the issues in dispute. Among other things, a mediator assists the parties in identifying issues, reducing obstacles to communication, and maximizing the exploration of alternatives. A mediator does not render decisions on the issues in dispute.

The key concept is that the parties have the responsibility for the resolution of the dispute, and the mediator is present to help them.

The mediator can help each side in a dispute to identify and clarify the real issue in the conflict. Often parties are focused on a particular part of the problem, and need perspective. Mediators can help people move back, examine the context, and find an acceptable way toward resolution.

Often parties become so frustrated and angry with each other that productive communication comes to a standstill. The parties simply cannot talk to each other. The mediator can listen, ask questions, restate and reframe, and can talk to each side without the emotional language of anger and frustration.

Parties to a dispute are frequently so focused on the substance of the complaint that they lack the capacity to think about a process which might lead toward resolution. The mediator brings with him or her that process, and can explain the process to the disputants, and can manage and oversee that process throughout.

Mediation is Private and Voluntary

Almost all of our conventional means of resolving disputes are public. Lawsuits form a public record; administrative complaints are published and discussed; and arbitration awards are generally distributed. Mediation is private.

Most mediations take place in private places–law offices, business offices, corporate conference rooms–that the parties select and agree to. No one attends mediation without the permission of everyone involved. There are no court reporters to take the transcript and no rules of evidence or procedure to shape the content of the discussion.

Mediation, to repeat, is voluntary. Voluntary means that the parties really do not have to do anything that they do not want to do. Sometimes that is better stated in the reverse: Parties CAN do anything they want to do. Compare that concept with all the lawsuits and administrative matters you know about.

Another way to describe the voluntary aspect of mediation is to highlight one of the values held most high by mediators, self-determination. The NC Code mentioned earlier includes this statement:

A mediator shall respect and encourage self-determination by the parties in their decision whether, and on what terms, to resolve their dispute, and shall refrain from being directive and judgmental regarding the issues in dispute and options for settlement.

The code goes on to comment, “a mediator may raise questions for the parties to consider regarding the acceptability, sufficiency, and feasibility, for all sides, of proposed options for settlement–including their impact on third parties. Furthermore, a mediator may make suggestions for the parties’ consideration. However at no time shall a mediator make a decision for the parties, or express an opinion about or advise for or against any proposal under consideration.”

Talking and Listening

So what do the parties do in a mediation? They talk. Sometimes they talk to each other, ask questions, answer questions, provide more details, and give substantiating documents. Sometimes they talk to the mediator, or they talk to each other through the mediator.

What else do they do? They listen. They hear a different perspective on the dispute from the other party. They see information they might not have had before.

They reassess and develop the context of their dispute. Often people in conflict think solely about the conflict itself, and fail to put it into context. How long will a resolution take? What will the costs of pursuing the matter be? What is the likelihood of success? What is the solvency of the other side? The answers to these questions can help parties understand the true dimensions of their conflict.

They bargain, they engage in joint problem solving, they achieve a deeper understanding of themselves and of the other parties involved. All of these things can happen in mediation as the parties engage with each other and are assisted by the mediator, who has the necessary training and experience to help them work out their differences in a productive manner.

Being a mediator is not easy. It takes training, experience and sensitivity. Working with people who are in conflict with each other is often arduous and frustrating itself. But it is frequently rewarding to be able to assist people who have been angry, distrustful, acrimonious, upset, and all the other adjectives you can add to describe people who are in a dispute that has grown to this level. And when those parties reach across the table to shake hands, and tell you, “Good job, thanks for your help,” it’s like no other feeling you have had in your professional life.

This article appeared in the November 2002 issue of NC REALTOR, the monthly magazine of the NC REALTORS®

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