Disputes are an inevitable part of human interaction. Mediation is a powerful tool that can help people resolve conflicts expeditiously and peacefully. The mediation process involves a neutral third party, known as a mediator, who assists the parties in resolving their disputes. Mediation is an excellent alternative to litigation as it is more cost-effective, and disputing parties can reach a mutually acceptable agreement. Mediation generally consists of seven key elements that must be present to ensure a successful mediation process. These elements serve as a road map to reach a mutually agreeable solution. Keep reading to discover the seven elements of mediation.
Interests refer to the underlying needs and desires of the parties involved in the dispute. Interests are very different from positions. While positions are essentially what the parties want, interests are the motivations behind that want. For example, if one party wants their money back, that is their position. However, when one asks them “why,” they may say that it is because they paid for a service that they feel they did not get or felt cheated. Discovering underlying interests enables parties to focus on solutions that truly meet their needs.
Alternatives refer to other ways the parties can resolve their differences if they cannot reach an agreement. For example, parties may believe that if they cannot reach an agreement through mediation, they can either go to court, use arbitration or continue with the status quo. Understanding the available alternatives (as well as the costs associated with each alternative) can help parties make informed decisions during mediation. Parties can also understand the benefits and the consequences of not reaching an agreement.
Options are any available choices that disputing parties might consider to satisfy their interests. During mediation, parties can brainstorm various choices with the mediator’s help. Such options may include contingencies, conditions, and trades. The more options parties have, the higher the likelihood of reaching an agreement.
Communication is essential in mediation as it is how parties express their interests, concerns, and options. Communication goes beyond voicing one’s opinions. It involves verbal and nonverbal cues such as tone of voice, gestures and body movements, as well as active listening. The success of a mediation process is hinged on how parties communicate through the mediator. Communication must be open, transparent, and honest. The mediation privileged allows for this as all communications are confidential and can never be used against any of the parties.
The relationship between disputing parties can determine how aggressive one can be in specific issues. Mediation is often used to resolve disputes between parties with an ongoing relationship, such as family members or business partners. One needs to ask: how meaningful is my relationship with the other party? Will I ever see them again? By understanding how the dispute affects the relationship, parties can work together to find solutions that meet their interests and maintain their relationships. For example, in a family dispute over an inheritance, family members may wish to maintain a positive relationship with one another rather than create further animosity.
The sixth element of mediation is legitimacy. Legitimacy refers to the perceived fairness of the mediation process and the outcome. You need an objective standard or reference point to substantiate the fairness of the process and the outcome. This may include your interests, legal rights, and the context of the dispute. A fair agreement in mediation must meet the interests of the disputing parties.
Commitment refers to the willingness of the parties to work together to reach an agreement. The currency that the mediator deals in is Compromise. Mediation is a voluntary process, and parties must be committed to listening to each other’s concerns and work collaboratively to find a solution that meets their interests. In addition, both parties should be committed to abiding by the terms of the agreement reached during the mediation process.
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