How to Mediate
I. Nuts and Bolts of Mediation
1. What is mediation?
Mediation is a process whereby a neutral third person called a mediator
acts to encourage and facilitate the resolution of a dispute between two or
more parties. It is an informal and non-adversarial process with the objective
of helping the disputing parties reach a mutually acceptable and voluntary
agreement. In mediation, decision-making authority rests with the parties. The
role of the mediator includes assisting the parties in identifying issues,
fostering joint problem solving, and exploring settlement alternatives. There
are at least four mediation models. The main mediation models are:
a. Facilitative model: party control over the outcome and
non-decisional neutral; "What do you want to do?"
b. Evaluative model: the mediator is more proactive and directive;
"Here’s what you could do."
2. Why does mediation work?
Most people prefer peace over war. Most cases settle. The parties have more
control over the outcome. Mediation is less expensive and faster than court.
3. How does mediation work?
The parties come together for an initial joint session with the mediator.
Each party gives an opening statement. At this point the mediator can keep the
parties together while exploring strengths and weaknesses of each party’s
position and seeking resolution options. Sometimes the mediator places the
parties in separate rooms and holds private discussions in which views and
options are explored candidly and in-depth.
4. What is the difference between mediation and other forms of
ADR?
a. Arbitration. Arbitrator hears evidence and enters award.
Mediation is less formal and the mediator does not decide anything. The
mediation is voluntary and non-binding.
b. Non-Binding Arbitration. Much like arbitration except that the
arbitrator picks a winner and the parties have the choice of living with the
outcome or continuing with litigation. Mediation is a process of discussion
and compromise in an attempt to reach a mutually agreeable settlement.
II. The Role of the Mediator
1. How do the parties pick a mediator?
In the context of church mediation, the parties can agree on a mediator
outside of the church family or select a mediator from a list of mediators
provided by the church leadership.
2. What are the qualifications of a church mediator?
The only qualification is that the mediator be a Christian. The mediator
does not have to be an attorney or a judge. No specialized knowledge of the
subject matter is required because the mediator does not decide anything. It
is the responsibility of the parties to present their positions to the
mediator and to each other and it is ultimately the parties that come to
agreement.
3. Should the mediator have the parties sign a written agreement?
Yes. A form should be developed which identifies the parties and contains a
few basic points of agreement. Mediation is confidential. The mediator may not
be subpoenaed as a witness in any arbitration hearing or litigation which
might occur if the mediation is not successful. A sample agreement is
attached.
4. What is the first thing I do when I am asked to serve as
mediator?
Obtain enough details of the dispute to determine if there are any
conflicts of interest. If there are parties, witnesses or businesses with
which you have had significant professional or social contact, then you need
to determine whether your impartiality will be affected. Any potential
conflict of interest should be disclosed to both parties and waivers obtained
from them.
5. How do I communicate with the parties after I am appointed as
the mediator?
Avoid ex parte contact, i.e., contact with just one party.
Only speak with a party in the presence of all parties until the mediation
actually begins. If you are backed into a situation of speaking with one
party, promptly disclose the subject matter of the communication to the other
party. Never compromise your neutrality.
III. Preliminary Procedures
1. Do the parties need to submit anything in writing before the
mediation?
Generally not. If one party submits a memorandum, then the other party
feels obligated to follow suit. Committing opinions to writing can actually
cause the party’s position to harden and make settlement more difficult. If
there is an unusually complicated factual situation, a brief memorandum can be
useful. Remember, however, that the mediator is not going to make a decision
and the parties already know the facts.
2. How much time is needed for a typical mediation?
A typical mediation can take place in 2-3 hours. Complex cases can
obviously take longer.
3. Who should attend the mediation?
The parties are the decision makers and obviously have to be there. If a
spouse has significant influence in the outcome, then the spouse should
attend. All individuals with authority to settle should attend. Attorneys are
not necessary for mediation but cannot be prevented from attending. If one
party is represented, then the other party should be represented. Resolve the
attorney issue in advance of the mediation. Obviously, the mediation is not
open to the public and non-essential parties should be excluded. If a party
feels that the presence of a friend is absolutely necessary for moral support,
then the mediator may allow that person to attend, preferably with the consent
of the other party.
4. What kind of preparation must the parties do before the
mediation?
You ask the parties to come to the mediation with a positive frame of mind
and prepared to not only present their views but listen to the views of the
other party. No particular preparation is required other than the facts should
be organized to be presented along with any necessary documents to aid the
mediator and the other party in understanding the case.
IV. Conducting the Mediation
1. Where should the mediation be held?
Neutral territory is preferred. The church is neutral territory. You will
need one larger room for the opening session and at least one smaller room to
separate the parties and have caucuses.
2. How do I "set the stage?"
The main goal is to make sure that everybody is comfortable. I do not get
too excited about the shape of the table and similar details. Use common sense
when determining seating arrangements. I like to make water, sometimes coffee,
and something like jelly beans available. Smile a lot and promote
friendliness. Be upbeat and positive.
3. What are the stages of a typical mediation?
a. Joint session.
1. Mediator’s opening statement.
2. Parties’ opening statements.
b. Private caucuses.
c. Joint meeting to announce agreement or adjournment.
d. Written settlement agreement drafted by parties,
not by the mediator.
4. What about taking notes during the mediation?
Take notes if you prefer, but tell the parties in the opening statement
that your notes will be destroyed and will not be evidence in any future
proceeding.
5. How much of any opening statement should the mediator make?
A simple outline is as follows:
a. Introduce yourself. If you haven’t already done so, introduce
the parties to each other. Give personal background. Be brief.
b. Explain mediation. Voluntary non-binding attempt to reach a
mutually agreeable settlement.
c. Describe mediation. Parties decide.
d. Role of mediator. Guide the discussion, clarify the issues. Not
a judge, not a decision maker.
e. Describe procedure. Opening statement, caucuses. Listen
politely and don’t interrupt the other person.
f. Confidentiality.
g. Conclusion. Thank them for participating. Congratulate them on
agreeing to mediate. Encourage them to stay comfortable. Locate necessary
facilities. Invite opening statements of parties.
6. How does a mediator respond to opening statements?
Listen carefully. Turn your body toward the speaking party. Show empathy.
Thank each party for the opening statement. Level the playing field and turn
to the other party. Control the length of the opening statement and the number
of documents presented. Rephrase what you have heard so that the parties know
you understood them.
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