Tailoring the Mediation Process to Meet Your Needs
Utilizing techniques from different schools of mediation, and utilizing technology to overcome any logistical challenges, a trained mediator can tailor the process to meet the needs of the parties.
Many people have an idea about what a mediation session is like: a mediator sits at a table with the parties and facilitates the discussion. But there are many “schools” or styles of mediation, and the mediator can adopt an approach to meet the needs of the parties.
At its essence, mediation engages a neutral person to help parties resolve their differences. Yet within that broad definition, different approaches can be tailored to the needs of the parties to optimize the chance of reaching settlement.
There are three main “schools” of mediation: facilitative, evaluative, and transformative. In the facilitative approach, the mediator asks the parties questions to seek out underlying interests. In evaluative mediations, the mediator may meet with the parties privately and give them a “weather report” about how strong their case is and their chance of success if the dispute ends up in court. In transformative mediations, the parties remain together in the room throughout the session and the main focus is on the relationship between the parties.
In reality, many mediators are fluent in all three schools of mediation and use a fluid model that draws on techniques and styles from all three schools. Prior to the mediation session, the mediator interviews the parties to learn about the issue from each side’s perspective. In addition to getting to know the parties, the mediator is learning about the nature of the dispute and strategizing about which techniques can maximize the chance of reaching settlement.
In some instances, a disagreement about the facts may prevent the parties from resolving the issue. Senator Daniel Patrick Moynihan once famously said, “Everyone is entitled to their own opinion, but not their own set of facts.” In those situations, the mediator’s first task is to work with the parties to develop a common set of facts. The mediator might use an abbreviated joint fact-finding process, where the parties agree to utilize experts. While that may sound complicated, it can be as simple as hiring a mutually-agreed upon and trusted appraiser to resolve differences about the value of a crop, piece of equipment or property. As long as all parties agree on the appraiser or team of appraisers, this technique can help the parties move past this hurdle to reach settlement.
In other situations, the connection between the parties is so fractured that it interferes with their ability to communicate and truly hear each other. The mediator may need to work on improving the relationship to enable the parties to tackle other issues. If the relationship is a true barrier and not easily repairable, the mediator can use “shuttle diplomacy” and the parties might never be in the same room during the mediation.
At the other end of the spectrum, the parties may get along and agree on the facts, but just don’t know how to move forward. The mediator might have experience and expertise in the subject matter and as a result help the parties generate possible solutions. Sometimes there are readily available solutions but the stress associated with conflict has prevented the parties from sitting down together to frame options. If time or distance is a problem, mediations can also be held by phone or through a video call.
Utilizing techniques from different schools of mediation, and using technology to overcome any logistical challenges, a trained mediator can tailor the process to meet the needs of the parties.
If you have any questions, contact the Agricultural Mediation Program.
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