WHAT IS MEDIATION?
Mediation is a negotiation between two or more parties to a dispute, facilitated by an agreed upon third party. The purpose of mediation is to assist the parties in negotiating a settlement by 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 helps the parties in efforts to identify and to focus on those interests that underlie the dispute. With a view to identifying the underlying interests, the mediator further assists the parties in efforts to separate the problem from the people, including the positions, biases, and emotions involved. 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 and their attorneys, the mediator can then propose a rule or objective criteria acceptable to all. With hope, that objective rule or criteria could serve as a standard for resolving the case.
A mediation, whether online or in person, starts with all parties in a joint meeting. It then proceeds in separate rooms or through a combination of both joint and separate meetings. If the parties assemble in separate rooms, the mediator shuttles back and forth between the parties in efforts to bring them together by exploring options and offers. Following an opening demand, the parties exchange offers and counteroffers in efforts come together within a zone of 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 in good faith and with the intention of exploring all options in an effort to reach a fair resolution of the dispute. Samuel Rudolph approaches mediation with a view of the big picture, including all interests that may underlie the issues in a case. In hopes of reaching a “win-win” resolution that adds value for both sides, it is Samuel Rudolph's approach to explore all options to put on the table before focusing on those most optimal to resolving the case.