PLEASE NOTE THIS IS AN EXTENSIVE DOCUMENT
MANY DISPUTES BETWEEN PEOPLE ARE NOT LEGAL IN NATURE
The UK has become a society of conflicts, complaints, grievances, arguments, protests, grumblings and expensive lawsuits. People will demand their rights. Few of us will allow ourselves to be taken advantage of and run over. But some will allow themselves to become embroiled in conflicts that waste time, money and productive opportunities.
Many disputes between people are not legal in nature; they are about poor communications, personal feelings and strained relationships. Life wrenching disputes arise amongst work colleagues, neighbours, business partners, family members, public officials, social groups and any other gathering of two or more.
Mediation empowers people to solve disputes. Disputes take time, money, effort and mental energy with no guaranteed outcome. Mediation is communication between conflicting parties under the guidance of a neutral third party in an attempt to bring the dispute to an end.
It differs from other forms of conflict resolution i.e. litigation, grievance, disciplinary etc., in a number of ways, namely-
“It doesn’t seek to answer what happened in the past but what needs to happen in the future”
“In other forms of conflict resolution the third party decides on behalf of the disputants. In mediation the disputants decide the outcome”
“In mediation we seeks to establish what behaviour in the future will be acceptable rather what in the past was unacceptable’
This is where Mel Thomas & Associates Mediation Services comes in. Through a tried and tested process we facilitate the parties to an agreement that has both commitment and ownership. We thus take away the stress, anxiety, expense and distraction on having to deal with unresolved conflict.
Why use Mediation?
- Its solution focused not problem focused
- Its private
- It’s cost effective
- Its owned by the parties themselves
- It creates a Win/Win
What is Mediation?
In one sense Mediation is no big deal. The need to mediate has been around for as long as people have been fighting and most of us pick up mediating skills from our everyday experiences.
One of the amazing things about Mediation is that it is so many things, for example: -
- Mediation is a schoolyard intervention. From nursery to sixth form, mediation is part of the education community and is supervised by schoolteachers and conducted by specially trained peer group mediators in the same classes as the parties in conflict.
- Mediation is part of family counselling for people separating. Mediation is a way for families who are splitting into parts to learn to deal with changes in roles, duties and opportunities and to face those changes in emotional balance.
- Mediation is part of community action and conflict resolution, a place where Mediators help disputants resolve neighbourhood disputes
- Mediation is what diplomats do to prevent countries from going to war or to help countries at war find peace
Mediation as a conflict resolution strategy in many settings is a relatively new phenomenon. All too often interpersonal conflict, especially harassment cases go unattended or end up with costly investigations (time, money, resources and personal trauma). Mediation offers an alternative process (not instead) to conflict resolution allowing parties to resolve problems, let go of their sense of grievance and mend broken relationships.
Does it really help?
Mediation is an Alternative Dispute Resolution strategy; it is not the answer to every conflict. Sometimes investigations/litigation are the only course of action available. However a two-hour mediation session can create a turning point in conflicts that have festered for years. The aim of mediation can be summarised as:
“The parties agreeing key behaviours on how they will work together with dignity to achieve the aims and objectives of the organisation” (NB you can substitute work with live next door, raise children etc)
Mediation gives people the chance to air their wounds. Intense conflict tends to generate misunderstanding and suspicion. Many of these evaporate when the parties are able to talk directly. Because mediation is not bound by the rules of a formal proceeding, the parties can bring up whatever concerns them most; they are not restricted to those issues that are the organisational, public subject of dispute. Finally the written agreement helps, even if a mediated agreement does not end a conflict; it can protect the parties from further friction and misunderstandings so that the conflict can fade away.
Success lies partly with the mediator’s skills, but also with the readiness of the parties. If someone is bent on keeping the conflict going, even the most obvious solution will not work. If everyone wants to see a conflict end, mediation can be a graceful and efficient way to do so.
What Mediation is not?
Mediation is not an attempt to decide who was at fault
Assessment of fault may or may not be done by investigators or judges, but mediators will not do it. Mediation is a structured, assisted process to bring the dispute to an end, not to declare winners or losers. Mediation does not produce a one sided victory; it produces a permanent cease-fire.
Mediation is not designed to establish the true facts of what happened
Fact - finding is the role of the investigation process, which has the responsibility to “prove the facts”. Mediation is quite the opposite - it looks to the present and to the future. The question in mediation is “What could now be done that would be better than this dispute?”
Mediation is not designed to find out what the mediator thinks about the situation
The mediator’s role is to lead and guide the disputants toward a truce. If a truce is not achieved and mediation is halted, sometimes a mediator may be asked to give an opinion on what should be done, but this is rare.
There are usually no witnesses in mediation
Think about it. Disputants are not trying to prove their case. In fact, everybody involved - both sides and the mediator, are all trying to prove the same thing, and that is: What could now be done that would be better than continuing with the dispute?
Mediation Vs. Investigation
Mediation is an alternative way to solve interpersonal disputes rather than taking out the Discipline and Grievance or litigation route for the following reasons: -
1) Cost/time - Just consider the cost and time implication of an investigation. How many people are involved - Personnel, Managers, Trade Union Officials, Witnesses, Disputants even Solicitors. How long does the process take to interview all parties - weeks, months? Mediation involves only the disputants and the mediator in 2 or 3 two-hour sessions.
2) Privacy - Mediation allows privacy and confidentiality as opposed to the public openness of the investigation process. In mediation strangers will not be listening to the dispute
3) Stress Reduction - mediation provides a neutral “discussion leader”, soothes ruffled feathers, ensures the sides have opportunity to speak, keeps negotiations going when parties are ready to give up, and seeks to restore relationships between parties.
4) Personal Participation and Control - Investigations are run by other people, according to the rules of procedure and evidence. Mediation allows your personal participation in a problem solving process. You will never feel left out, uniformed, or shackled by rules and regulations. In investigation you surrender the outcome to the people administering the procedure. In mediation you retain control of the outcome. In mediation you can never be shocked or terribly disappointed by the decision. Nothing will be decided in mediation unless you agree to it.
What does mediation actually look like?
Mediators often speak about “trusting the process”. They tell stories about mediations where parties seemed bitterly deadlocked; yet by the second hour, those stubborn, angry people were engaged in a friendly, productive discussion.
The anatomy of a session will look like this.
1. First Contact with First Party by Mediator
2. First Contact with Second Party by Mediator
3. Preparing to work on the Dispute - location, dates, times
4. Opening Statement
5. Uninterrupted Time
6. The Exchange
7. Setting the Agenda
8. Building the Agreement
9. Writing the Agreement
10. Closing statement
1. First Contact First Party
The Mediator will make contact with one of the disputants to talk through the process of mediation and answer any questions. The Mediator is not there to ascertain what is going on.
2. First Contact Second Party
The Mediator will meet with the second party as she/he has met with the first party.
3. Working on the Dispute
The Mediator will arrange times and a location that is neutral to both parties
4. Opening Statement
The Mediator will open the session with a welcome and an explanation of what will happen.
5. Uninterrupted time
Each person takes a turn speaking while everyone else listens, no interruptions are allowed. Three aspects are requested at this point:
1. What issues do you need to resolve?
2. What key behaviours do you desire from the other person?
3. What key behaviours are you prepared to offer in return?
6. The Exchange
Then the discussion takes place. For a while people may accuse each other and attempt to set each other straight on facts. They explain why they are upset and may make demands.
The Mediators keep the discussion in bounds, making sure that each person is heard and each is protected. The Mediators do not try to determine the truth or who is at fault. Rather, they listen for what matters to people and for possible areas of agreement. Sometimes the Exchange brings about what we call a “turning point” of reconciliation.
7. Setting the agenda
Discussion shifts towards the future: what will happen from now on? The parties agree on an agenda of issues, which need resolution.
8. Building the Agreement
The parties work through each issue on the agenda, generating a number of ideas, the weighing, adjusting and testing the alternatives to craft a workable, mutually acceptable solution.
9. Writing the Agreement
If the parties are able to settle their differences, the parties write a formal agreement containing those decisions. Everyone signs and keeps a copy
10. Closing statement
The Mediator will state what has been accomplished and remind people of the next steps. Including monitoring and review procedures
Conditions for Mediation
- On-going relationships are important
- Those involved wish to retain control of the outcome
- There is no great difference in power between disputants
- Speed is important
- Confidentiality is important
- Both parties need to let off steam
- The parties have stopped communicating with each other and are prepared to use an impartial third party to help them communicate
- People have neither the skill nor desire to negotiate effectively without some outside help
- People cannot find a solution to the dispute but want to settle
- Not dealing with the dispute is unacceptable to both parties
- The personal safety of either party does not depend on the outcome of the agreement
- The people are participating voluntarily
- The parties perceive the mediator as unbiased
- There is a great power imbalance between parties
- A higher authority judgement is required
- Investigation or legal action is already being carried out
- Matters of basic rights are at stake, such as personal safety, harassment
- The parties are not willing to participate
- One or both parties feel unsafe
- The parties are not willing to negotiate
- Positions on both sides are extreme and have hardened