Mediation

CULTURAL DIVERSITY AND THE MEDIATION PROCESS:

Cultural diversity can be described as the cultural differences that exist between people, their language, dress and traditions, their shared concept of morality, and in the ways they interact with each other and their environment. What does that mean for a mediator, if anything?

The only constant at the mediation table is that there is always a dispute. After that we must acknowledge that we are different. Factors such as gender, culture, heritage, religion, sexual identity, up-bringing, education, dress, morals, language, and place of origin, shape our behavior.

When a party maintains a position that just seems out of line, or even worse, counter-productive, I usually acknowledge their untraditional position by saying “I believe that you believe that to be the case” thereafter I ask the party to “explain their position further so I may better understand.” I find the two prong approach of 1) acknowledging their sentiments (however odd); and 2) allowing the party to explain itself builds trust, rapport, and common ground.

DEALING WITH A DIFFICULT PARTY:

As mediators and attorneys we are very familiar with the opening statement of the mediator. It is a voluntary process, confidential, and conducted by a neutral third-party. It is so routine that the mediator repeats the mantra by heart as seasoned counsel uses the time to day dream. In most instances the parties and counsel are eager to put the litigation to rest and settle the case. In fact, it has been said that as many as 85 percent of cases settle prior to trial. After all, why not? The benefits are great: 1) it is voluntary in nature, either party can walk out at any time; 2) each party is in control and makes their offer and the conditions they are willing to accept from the other side and what terms they are willing to give up so as to settle the conflict; and 3) the process is conducted by an equal and balanced third party outside the courtroom.

But recently I was confronted by a party who could not envision trading his waring posture so as to engage in a voluntary collaborative process of negotiation. His anger was intense and he came in ready for battle. At first, my initial reaction was to admonish him and say “calm down and take it easy.” After all, we are here to try to settle the case and his attitude is definitely not helping the prospects of settlement.

But I held back and thought about it for a minute and I am glad I did. Maybe he was justified in being that hostile or maybe he just needed to vent for a minute. In any event, I turned to the agitated party and in a sincere tone, said, “help me understand you better, I see you are angry, would you to explain to me what you are feeling.” After about five minutes of expressing himself (some arguments justified and others based upon ego), he felt like he had the ear of a compassionate yet neutral third party. As mediators, I think it is important not to put a party in your shoes but to put yourself in their shoes. If you can engage a party and find common ground, the chances of coming to a meaningful resolution increases.

WHAT ARE THE BENEFITS OF MEDIATION:

1. Voluntary – Mediation is a voluntary process. Even if Mediation is ordered by the Court a party merely has to show up! You can leave at any time for any reason, or no reason. In other words, the parties are the masters of their own fate.

2. Controlled – Each party has complete decision-making power and veto power over each and every provision of any mediated agreement. The parties select and offer the terms and conditions they are willing to accept from the other side and give up so as to settle the conflict.

3. Collaborative – As Mediation is Voluntary and controlled, no party can impose any conditions on any other party. Each party is motivated to work together to solve the issues and reach best agreements.

4. Confidential – Except under certain unique circumstances, Mediation is confidential. Mediation discussions, offers, concessions, and all materials developed for a mediation are generally not admissible in any subsequent court or other contested proceeding, except for a finalized and signed mediated agreement.

5. Informed – The mediation process allows a party the opportunity to obtain and incorporate legal and other expert information and advice. Individual or mutually acceptable experts can be retained to advance a party’s argument. Nonetheless, at the end of the day, it is always the party that retain decision-making power.

6. Impartial, Neutral, Balanced and Safe – The mediator has an equal and balanced responsibility to assist each mediating party and cannot favor the interests of any one party over another, nor favor a particular result in the mediation. Mediators are ethically obligated to acknowledge any substantive bias on issues in discussion so as to ensure that the parties reach agreements in a voluntarily and informed manner, and not as a result of coercion or intimidation.

7. Cost – The one issue both parties undoubtedly agree with is that legal fees and the cost of litigation is expensive. A successful Mediation will allow the parties to eliminate costly legal fees going forward and resume their respective professions and get back to normal life, employment and family.

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