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What is Mediation, Really? (And Do I Want It?) - Part II: The Process

Posted by Penn A. Dodson | Sep 17, 2020 | 0 Comments

Mediation empowers you to find your own solutions to conflict and disagreement that may arise when making big changes in your life. In Part 1 of our series, we discussed how Mediation allows you to resolve your family disputes, on your terms … and not somebody else's.

The thing is, for most people, mediation may be a new, and unfamiliar process. You may have heard some things about it, and it seems risky because of its uncertainty. We'd like to let you in, and give you some insight into what the process is really like.

Confidentiality

One of the most important things about mediation is that whatever is said in mediation, stays in mediation. If you've read anything about mediation online or in a pamphlet somewhere, chances are you'll learn that the mediation process is confidential. The point of mediations is to be able to speak freely and frankly – even, where appropriate, to admit (at least to the mediator, if not the other side) where our own weaknesses might lie. Because of that, they are deemed confidential – you can't use things they say against them in court later on if it doesn't settle and vice versa.

The Process Itself Helps

Have you ever known anyone who just had to do things the “hard way”?  Chances are you have. Let's assume it's your kid. You watch your kid chop some carrots. “Might want to get your fingers out of the way!” you suggest. More chopping, and a near finger slice. “Be careful! Hold your other hand with your fingers bent!” Chop, chop. “You're making me nervous! Here, hold it THIS way!” You show the proper technique, hand the knife back, and walk to the other room.

Of COURSE. “AAAOOOOWWWWW! Mom! I cut myself!” It takes all you can muster not to roll your eyes as you retrieve the bandages and peroxide. “OK, now I get it why I have to cut the way you showed me.” You can't help the eye rolling now, but somehow manage not to smack your forehead with your palm.

What does this have to do with mediation?  Sometimes people just HAVE to go through a process themselves before they “get it.” You may know exactly what end result you want (and that makes the most sense), and maybe the other side isn't necessarily in all that much disagreement (when you break things down the right way) --- but for whatever reason, you just can't get the matter resolved amongst yourselves.

As experienced mediators ourselves, we can, more often than not, see in the first few minutes what the final agreement will be. We have also learned not to try to shortcut the process. It doesn't work! For reasons of human psychology, the you and your ex are not able to jump to the end and get to that “obvious” solution. Almost always, you have to go to go through the process.  Furthermore, even if you can “jump” to the end … we have learned that going through the process helps the agreement to “stick.”

It sounds goofy, but there really is something kind of magic about the mediation process. I'm sure in reality it is more a function of the process interplaying with human and social psychology in just the right way, but the net result often feels the same.

What The Mediation Process Looks Like

What is this process, you ask? In the big sense, it's about stating your position, being and feeling heard, suggesting outcomes, and going back and forth on each of these through a third party. That might not sound magical, but there is something that happens during the course of the process.

The format is usually (though not always), as follows:

  1. The mediator, the parties (and their lawyers, if applicable) meet in a conference room, together at first, where the mediator explains the process. (Sometimes where there is high conflict, or the parties do not think that being in the same room would be a good idea, they are split up from be beginning, and the mediator explains things to them separately.) If everyone is together, sometimes the lawyers from each side (or the parties themselves if there are no lawyers) will make short opening statements.  This is not the time for arguing the whole case or trying to convince the other side that we are right and they are wrong; generally it is just an overview of what the case is about and sort of laying out where the parties disagree. (It can be important to agree as to where you disagree!)
  2. After that, the parties are usually placed in different rooms, and the mediator goes back and forth between them for the rest of the process. The mediator explores what is important to each side, and what isn't. Often, the mediator helps to show each side where they have weakness in their cases, and where they can give a little, without it hurting too much. 
  3. If agreement is reached – and it frequently is – the mediator may suggest that everyone comes back together to shake hands. Sometimes the mediator may sense that this is not the best idea. Usually, however, if there is an agreement reached, there is some kind of written memorialization of what was agreed to. It's not usually a full blown formal agreement, but more like a term sheet or “agreement to agree” with some bullet points of the major things that everybody agreed to.

When you leave, you will have had a major role in crafting your future. Even if agreement is not reached, the mutual exploration of what disagreements remain often have a lingering positive effect on the parties.

Moving From Positions to Interests

What are some of the dynamics you might expect at a mediation?  A good mediator is one who can help the parties to move from positions to interests. What does that mean? A “position” is what you say you want – the end result, the brass tacks. An “interest,” by contrast, is what it is underneath that is really (actually) the thing that you want.

 As an example, let's say your ex marches into the mediation and announces he wants the kids every weekend of the school year (a “position”). Well, why should you get only the stressed-out school days and your ex gets all the fun time? You feel your blood start to boil. A good mediator can step in and start to break it down a bit. The mediator learns (when meeting with your ex privately in the other room) that really what is important is being able to be involved in the kids' sporting activities – your son's football games on Friday nights and your daughter's swim meets on Saturdays. As it happens, you (truth be told) actually kind of hate going to the hours-long meets and events and, while you do want to be supportive of their efforts, you would gladly rid yourself of the obligation to be the point parent for all this. At the end of the day, your ex probably will not end up getting what he went in saying he wanted – all the weekends – but he may well get the part that is particularly important to him, that also benefits you. That's moving from positions to interests, and believe me, when that actually does happen, it sure does feel like magic. Win-win's actually can be had much of the time … but it can take a neutral party to find them.

 Part 3 – Preparation

In Part 3 of this Blog, we'll discuss how to get the most out of mediation. It is important to be prepared in several ways.  You want to have all your ducks in a row: what you want, what you can accept, what the financial situation, etc. You also want to prepare to be constructive, and not reactive. Being prepared can be the difference between success and stalemate in a mediation.

New Leaf

As you probably know if you've participated in any of our programs or have been reading our other blogs, at New Leaf our focus is on empowering you to make the best decisions you can for yourself and your family. We believe that, especially when combined with other self-development work like our Decision-Transition-Equilibrium training, mediations can be a very effective tool in getting to a resolution. They're not the only tool, but they are often a good one and we like to help you put as many arrows in your quiver as we can.

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