Thursday, December 12, 2013

Structure of Mediation

If you can persuade the adversaries in a difficult dispute to agree on the structure for mediating the dispute, you may be able to avoid having to pay thousands of dollars in legal fees to resolve the same issues by litigation. As stated, the structure of the mediation is critical.
The parties must agree on a Chair/Moderator/Facilitator who will chair the discussion(s) and

  1. Obtain the express agreement of all of the participants to comply with a mutually acceptable set of Behavioral Rules for a Successful Discussion (See the checklist below) established by the Facilitator and the participants. These must be finalized before any discussions begin and everyone must agree that the Facilitator has the absolute authority to manage the discussion and apply the Rules;

  1. Help to identify the ultimate common goal(s) of the parties; For example, “To determine whether or not the parties are willing to work together to resolve any legitimate issues between them that would prevent going forward with the construction and sale of the subject property”.

  1. Identify the issue(s) that each party wishes to discuss and the method for determining the order in which each issue will be taken up, and

  1. Manage the discussion of each issue to ensure that:
    1. the participants comply with the adopted Rules, and
    2. the discussions focus on one issue at a time in the order agreed, and
    3. the discussions move along as quickly and courteously as possible, and
    4. no one filibusters or repeats arguments.

Sample checklist of Behavioral Rules for Successful Discussions:

  1. No raised voices.
  2. No profanity, curse words, etc.
  3. No threats.
  4. No disparaging, insulting, demeaning remarks or accusations.
  5. Always speak and act in a courteous and professional manner toward everyone.
  6. Let go of the past; let go of blaming; begin the discussions with a new, clean sheet of paper.
  7. Really listen to the person who is speaking and don’t interrupt the speaker.
  8. Ask questions to make sure that you understand what the speaker is saying and his/her point of view.
  9. Whether speaking or listening, try to distinguish facts from beliefs, conclusions, feelings and perceptions that may not be supported by facts.
  10. Try to discuss facts that can be independently established as correct or incorrect.
  11. Eliminate adverbs and avoid adjectives that send meta-messages.
  12. Beware of non-verbal communications: raised voice; intensity; tone; inflection; body language; facial expression.
  13. Most important of all, give everyone a full and fair opportunity to be completely heard with respect to all aspects of their concerns, issues, positions, points of view, etc.

If adversaries are willing to discuss their differences courteously and in good faith, in the manner described above, there should be few disputes that could not be resolved without litigation.  

 - Beau Brincefield