In a successful mediation, everyone works cooperatively to reach a fair settlement of their dispute. So what are the key elements to keeping your mediation on track? Here are ten rules to follow:
Participation and being personally involved in all of the meetings that take place is an essential element of the mediation process. The best form of participation is being physically present, but video conferencing (e.g. by Skype) is also possible. It also means emotionally investing in the process. This involves not only a belief that the mediation process is the best way of resolving your dispute, but that you both have the power to accept any offer of resolution made by the other party.
All the relevant documents must be made available
Mediation involves working through your differences of opinion and the provision of documents can be invaluable in achieving this goal. Whether these documents relate to debts or assets, it is impossible to enter into informed negotiations if everyone sitting around the table has not agreed the value of the item being discussed.
Be right, but you both cannot be right
In every mediation, one or both of you is likely, at some point to believe that your position is the right one.
However, if you each focus exclusively on demonstrating that you are right; the chances of achieving a successful resolution are limited. Instead, it is always best to work on the premise that there are varying degrees of right and what may be right for one party may not be right for the other. A useful balancing exercise is to look at whether the proposed options are realistic.
In a fight the goal is to win, but fighting involves beating your opponent and can involve a significant amount of both financial and emotional expense. In mediation, the goal is resolution. This involves putting both of you in a win-win situation. The resolution must work for all and each of you should be concerned not just with your own interests, but also with the interests of the other and, of course, any children involved.
In order for a resolution to be achieved in mediation, consent is an essential ingredient. Mindless or gratuitous disrespect very rarely, if at all, brings about a consensual agreement. There may be many reasons as to why one person may feel aggrieved or disrespected, but the key to a successful mediation is to acknowledge what has happened and behave in a business-like manner throughout the process.
The mediation process involves negotiations. A successful resolution will only be achieved if you are able to persuade each other of the mutual benefits of any potential agreement. The classic means of persuasion involves establishing the right approach at the right time, with the right emotional tone, with a force of objective logic and the strength of personal credibility. With this in mind, you will both be encouraged to make offers, counter offers and further offers, which can then create a positive cascade until a compromise is reached.
Focus on interest
Negotiate from interests not positions. An interest is a “want”. A position is “one way to satisfy a want”. Knowing what you want is essential but likewise identifying the other party’s interests is also a key part of the mediation process.
By identifying the other party’s interests, you automatically become more informed & able to adopt the right approach.
Create options and solve problems
The key here is to reconcile your respective interests. Options must be identified and be creative, and must enable both of you to achieve enough of your interests that the options are realistic. Reconciling interests requires problem solving and problem solving requires creativity and an open mind. Often, the better ideas will come later in the process after people have run out of ideas. Once a number of options have been identified, you can then evaluate them and select the one that brings optimum value to each of you.
Working through the anger
At some point in the mediation process it is likely that one of you may feel that you are conceding too much ground. This may lead to frustration and anger. Anger is often misinterpreted as a sign that things are not going well, but this is incorrect. There may be many reasons for the anger and it is important to work through the issues that led to the anger. A deal can still be achieved if you can agree to a resolution that satisfies both of your interests and understand that a deal is better than no deal.
This is probably the most important point rule during the mediation process. It may take time for one person to understand and accept what is realistic and achievable. It is therefore important that the mediation proceeds at the right pace and one person does not feel that they are being dictated to. Whilst it can take time for people to change their minds, a degree of respect combined with an understanding of where the other party may be both emotionally and practically, is likely to achieve a speedier and more satisfactory resolution than any attempt to “drive” the mediation to an early conclusion.