WHAT IS MEDIATION?
Mediation is a negotiation between two or more parties facilitated by an agreed upon third party. The purpose of a mediation is to assist the parties in negotiating a settlement and reaching a mutually satisfactory agreement. A mediation is “party-centered,” and all participants in a mediation are encouraged to actively participate in the process in a combined effort to reach an optimal solution.
Mediation employs various techniques to open or improve communication between the disputing parties. The mediator is a facilitator in managing the interaction and opening communication between the parties. The mediator is evaluative in analyzing the issues, alerting the parties to the relevant norms, and in advising them how the dispute would likely play out should the matter proceed to trial [“reality testing”].
The mediator assists the parties in efforts to identify and focus on those specific interests that underlie the dispute. With a view to identifying the underlying interests, the mediator further assists the parties in an effort to separate the problem from the people, including those positions and emotions involved in the dispute. It is the hope of all that a mediation will bring to light those common interests of the disputing parties that can form the basis of a settlement.
Once the underlying interests are identified, the focus turns to the most optimal resolution for the disputing parties. One effective means of reaching an optimal resolution is to identify and place on the table all options or alternatives that come to mind during the mediation session. With the help of the parties, the mediator might then propose an objective standard or criteria acceptable to all, which can then serve as a standard for resolution of the dispute.
A mediation can proceed with all parties in a joint session, in separate rooms, or through a combination of both. If the parties assemble in separate rooms [a process known as caucusing], the mediator shuttles back and forth between the parties in efforts to bring them together and within a zone of agreement. Following an opening demand, the parties exchange offers and counteroffers in efforts to reach a compromise agreement. Through the mediator, the parties attempt to negotiate an agreement satisfactory to the disputing parties.
Mediation has a good track record of success. A successful mediation, however, rests upon the good faith of the disputing parties. All must approach the mediation with the intention of exploring all options in an effort to reach a fair resolution of the dispute. It is the approach of Samuel Rudolph to approach mediation broadly, with a view of the big picture and all interests that may underlie the dispute. In hopes of reaching a “win-win” resolution for all, it is his approach to place all available options on the table before focusing on those most optimal to the parties.