I still come across some resistance if I want to include a mediation clause in my (consulting) contracts. Why is that?
Is it ‘because we never had such a clause in our contracts’? Or is it ignorance? Is it not even corporate lawyers understanding what mediation means - thinking of yoga mats - and therefore choosing to play it safe, ignoring any attempt to include such a clause?
Whatever the reason – there is no need to fear mediation. Let me explain what it is, really.
Well, first and foremost, mediation is a valid and effective approach to conflict resolution. The creative solutions that are possible with it mean that mediation is increasingly being considered in conflict situations. By businesspeople and even by lawyers. So not all hope is lost! Mediation is indeed increasingly considered as an alternative dispute resolution method to arbitration and litigation.
Let me describe what happens in a mediation session:
After the preparations that ultimately lead to mediation (initial contact, preparation calls, information gathering), the mediation session finally takes place on the agreed date.
Ideally, at least one person per party who knows the facts takes part. Of course, several people per party can also be present, which is often the case in commercial mediation meetings. At least one of the persons present for each party must be authorised to enter into a binding agreement/solution and also to validly sign it.
It may be useful if the parties also invite their lawyers to this meeting. But this is not mandatory. Sometimes it can be helpful if the parties talk without legal assistance and thus come to creative solutions.
The session ideally takes place in a room that is bright and pleasant but not overly cozy. Ultimately, the goal is to resolve the conflict as efficiently as possible.
If it is not possible for the parties to be in one room together, they can also be separated - the mediator then shuttles back and forth between the rooms in which the parties are located. This is known as ‘shuttle mediation’. In such a setting, it is extremely important for building trust (and thus the success of the mediation) that the mediator pays attention to confidentiality. It must be communicated to the parties that nothing that has not been explicitly allowed will be repeated in the other room or in the joint sessions. Done properly, shuttle mediation can increase the amount of confidential information that is shared with the mediator. It can therefore help to solve the conflict if it is properly handled. Therefore, even in a ‘normal’ mediation, I always conduct at least one so-called private session with each party.
At the beginning of the mediation session, the representatives of the parties briefly present their ‘case’. They explain how the conflict came about and what it is about – from their point of view. After each party’s statement, the mediator briefly summarises what she has heard and clarifies any questions of understanding.
Then, the parties jointly (!) list all the issues that are part of the conflict and therefore need to be clarified. The order and who presented an issue is not relevant - brain-storming is the key!
During the next step, the mediator moderates the discussion. All topics are discussed one after the other to really get to the bottom of the matter. The idea here is to get from the often hardened positions (the wants) to the interests (the needs). It is important that at the end of this phase the parties feel that ALL relevant issues have been adequately discussed.
During this stage of the mediation, the question 'Why are we sitting here?' is central.
Now, only after all the issues have been discussed, options are generated. Options must be acceptable to all parties. Only options perceived as fair will allow parties to agree and find a solution.
Generating options is about the questions ‘What is possible?’ and ‘What is fair?’.
If finally the parties agree on an option, it should be compared with realistic alternatives:
Imagine what happens if we don't agree?
Once the parties have agreed on an option and compared it with the alternatives, the solution will be recorded in writing and signed during the meeting. It is important that the agreement is clear and easy to understand.
The agreement summarises what has to be regulated and how.
If lawyers are present, they can help draft the agreement. Otherwise, the parties agree on the wording.
To ensure enforceability, there is the possibility to e.g., have the settlement notarized, if the parties wish so. However, experience shows that just the process of finding a solution together, as well as writing it down and signing it often lead to the parties adhering to the agreement. It is a private contract, after all.
How long does this take?
My experience shows that mediation can often be completed in a single session (anywhere between a single hour and a full day), eliminating the need for additional sessions. If necessary, further meetings can be scheduled.
I hope that now, the uncertainty of what actually happens in a mediation session has been reduced.
If you need support in resolving a current conflict or are interested in improving how you or your company deals with conflicts, please contact me for a first discussion about conflict management, (conflict)coaching, or mediation.
This blog post was originally published on May 31, 2021 by Beatrice Herrmann on commercialmediation.ch.