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Months. Complex and multi-party litigation can benefit from a carefully

Structured mediation process in which the mediator works with the parties and

Their attorneys to define the issues which need to be resolved. When the parties and their attorneys have conducted a certain level of discovery and feel prepared for the mediation session, it is possible for the parties to save a significant amount of time and money by utilizing the mediation process.

III. Benefits of Mediation

A. Mediation can be a creative dispute resolution process, which offers many benefits unavailable with other procedures. Mediation allows the parties and their attorneys to think “outside the box” and create resolutions to disputes which may not be available in a courtroom setting. Benefits of the process include:

Helping to maintain an ongoing relationship that the parties wish to maintain;

Helping to establish an ongoing relationship;

Assisting the parties who prefer to avoid a legal precedent;

Assuring the parties that the privacy and confidentiality about the nature of the dispute, the agreement, or both are honored as part of the mediation process;

Assisting the parties with their need for open communication and information exchange;

Assisting the parties in identifying common interests in their disputes;

7. Assisting the parties in their negotiation of terms to resolve their disputes and an example is when the mediator tells the parties “this is your process” or “this is your opportunity to determine the terms of your agreement”;

Assist the parties and their attorneys with thinking creatively to resolve their dispute;

Encouraging the parties to express their desire for self-determination and to resolve their dispute by creating their own terms for settlement and securing their own fate without judge or jury imposing a decision upon them;

Suggesting to the parties or their counsel the possibility of unrealistic assessments of their case and offering questions which assist with formulating

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Creative resolutions for their dispute;

Reminding the parties that despite their differences, there is a mutual goal to achieve a satisfactory resolution.

IV. Role of the Mediator

A. Basic Responsibilities

The role of the mediator is what distinguishes the process of mediation from other dispute resolution processes. The mediator is a facilitator, and should not impose his or her own judgment of the issues upon that of the parties. Certainly in reaching the goals of mediation, it is also imperative that the mediator be a skilled communicator. In fact, it is often due to a lack of or miscommunication that disputes exist and are unable to be resolved. Therefore, in the role of a facilitator, the mediator must not only communicate with the parties, but also assist the parties in their communication with one another.

The term “facilitate” is defined as “to make easy or easier…to lighten the work of; assist; help.” The mediator assists the parties in making the conflict resolution process easier by guiding the parties’ negotiation with each other. The mediator does not have a vested interest in the particular resolution, does not have to render a decision, and does not have to and should not take a position in the bargaining or negotiation of the parties. This enables a mediator to employ problem-solving techniques that otherwise might get lost in the one-on-one positional negotiations.

In most cases, a mediator attempts to move parties from an adversarial negotiation process to a more integrative and problem-solving mode. In doing so, the mediator should help the parties identify their underlying interests. In most disputes parties will take a position. This is what happened and what caused the dispute and this is what they want and why. The parties try to establish facts, and the basis for a deserved outcome. The positions may change as the dispute and its resolution develops, but most parties do not fully explore the reasons or underlying interests behind their positions. Positions are what people want and interests are why they want it. Mediators must work toward getting all parties to look at not only their positions but also at their interests. This movement away from positions can also steer the parties away from viewing the dispute as a right-wrong dichotomy.

As the mediator uncovers the underlying interests of the parties, certain alternatives or positions may be found which are better suited for resolving the dispute than those formerly proposed. The mediator should assist the parties in developing and exploring these alternatives as possible resolutions. The mediator offers creative ideas for resolution.

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