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What is Mediation and How Does it Work?

What is Mediation and How Does it Work?

If two disputants either cannot resolve differences by themselves, or they feel that the effort to reach a solution would benefit from the intervention of a neutral third party, they should bring their issue to the Ombudsperson. Mediation is an informal attempt to resolve a dispute and is perhaps the most common technique that the Ombudsperson uses to help the disputants in their attempt to reach a solution. The Ombudsperson is trained in mediation methods, and she can often assist the parties in coming to a mutually-agreeable resolution of their problem.

Definition of Mediation: Mediation is a process in which an impartial third party assists disputants in finding a mutually acceptable solution to their conflict. It is both voluntary and confidential.

Positions vs. Interests: both parties should understand this as they go through a mediation

Mediation is primarily about negotiation, and negotiation is often about positions, yet managing interests can often be more effective than taking and defending positions.

Positions

A common starting point in negotiations is to take a position, which usually means having a particular viewpoint and requirements from which there can be little movement. Like medieval barons, each "player" builds a castle and besieges the other. Success is a simultaneous defense of your own position and the destruction of the opponent's position. It is a fixed-sum, win-lose pitched battle, where key information is only about strengths and weaknesses and strategies of attack and defense.

Taking positions, however, has many limitations. Battles can leave you weakened. The vanquished can become secret enemies. What seemed like a good position at the time can turn out to be a poor choice.

In a fight or flight sense, an alternative to fighting sometimes seems like being friendly and allowing others what they want rather than standing your ground. The substance of the negotiation is given up in return for what is hoped to be a good relationship. Those who bend over backward will be treated as if that is their normal position, and hence will be taken advantage of again and again.

Interests

An alternative is to seek the interests that underlie the positions. Ask why any position is taken. Probe for the deeper reasons. Find the underlying needs and goals. 'Why' is a powerful question that uncovers real reasons.

Discovering interests confers many benefits. Positions may still be taken, but now you have many possibilities that can still satisfy interests. Battles may still be fought, but now the loser has choices in defeat to retreat to a lesser position or negotiate a settlement that ends the war. The all-or-nothing, do-or-die approach of positional battles can be also replaced with variable feasts that seek peaceful solutions from the start, preserving the relationship and expanding the pie so both parties can satisfy most of their interests.

Mediation Rules: both parties should agree to follow these as they enter into a mediation

1. Good Faith Effort
Parties in the mediation process agree to make a good-faith effort to resolve their conflict, which means to make an honest endeavor to participate in communications or conferences with the other party with the purpose of reaching a mutually acceptable settlement.

2. Confidentiality
Except as otherwise agreed by the parties or permitted by law, any oral or written communications prepared specifically for or expressed in the course of the mediation proceeding are privileged and confidential and shall not be disclosed through discovery or any other compulsory process and are not admissible as evidence in any judicial or arbitration proceeding. Audio or visual recordings of mediation communications, electronic or otherwise, are not permissible. Exceptions to the rule of confidentiality in mediation communications that are permitted by law include immediate threats of physical violence including self-harm, or when child abuse is suspected or reported. Any documents that are produced as a result of mediation, such as a settlement agreement or summary of decisions reached, may be used by participants in subsequent relevant proceedings.

3. Courtesy
The parties agree to be courteous throughout the mediation process by respecting the opinions, perceptions, and feelings of the other parties and by refraining from personal attacks, intimidation, threats, and verbal or physical abuse.

4. The Role of the Mediator
The mediator may conduct joint and separate meetings with the parties and may suggest resolutions to the conflict, but does not have authority to impose a settlement.

5. Representation
Any party to the mediation may be represented by another person provided that the representative has sufficient knowledge of the problem and full authority to make and sign a binding agreement on behalf of the represented party, and that efforts to mediate with the representative are likely to enhance the possibility of achieving a settlement.

6. Legal Counsel
The parties may consult legal counsel at any time during the mediation process. The mediator has no duty to protect the interests of the parties or to provide them with information about their legal rights.

7. Termination of Mediation
The mediation process is terminated when (a) the parties reach a settlement agreement; (b) the mediator determines that further efforts at mediation are no longer likely to achieve a settlement; (c) both parties withdraw from the mediation proceedings; or (d) the Hood College mediator declares that a party should bypass the mediation process and proceed to a more formal means of resolving the issue.

8. Arbitration and Court
Should the parties fail to settle their conflict, both parties, if eligible, may employ a more formal means of resolving the issue with Hood’s Office of Human Resources; otherwise, legal remedies may be sought through the civil courts.

9. Exclusion of Liability
Neither the College nor any mediator shall be liable to any party for any act or omission in connection with any mediation service or activity sponsored by the Office of the Ombudsperson.

The Mediation Process

While there may be variations in the "game plan" of a mediation, a typical mediation process consists of six basic stages:

I. Assessment and Entry
Disputants open a case by calling or emailing Hood’s Ombudsperson, or by being referred by Human Resources or another College official. Before the mediation can proceed, both disputing parties must fill out an Agreement to Mediate form expressing their voluntary consent for the mediation to be performed.

II. Introduction
In the introductory phase, the mediator (generally, the Ombudsperson) will state the purpose of the mediation, explain her role as mediator, and ensure confidentiality. The mediator will also explain the process and establish ground rules (e.g., allowing each other the opportunity to speak without interruption, refraining from abusive language). The purpose of the introduction is to establish trust and open, honest rapport while setting a positive structure for resolution of the conflict.

III. Storytelling
Each party gets the chance to tell his or her version of the dispute and explain the effect it has had on him or her:

  1. The complainant (who initiated the case) describes the situation without interruption from his or her perspective while the respondent listens.
  2. The mediator paraphrases the content and emotions briefly, but with empathy.
  3. The respondent describes the situation as he or she sees it.
  4. The mediator paraphrases the content and emotions for the respondent, again, with empathy.
  5. The mediator will offer each of the parties opportunities to add further details and clarification, or may invite the them to ask questions of each other.
  6. The cycle is repeated as many times as necessary in order to identify the issues, note commonalities, and focus concerns.
  7. The main goal for the storytelling phase is to enable the parties to understand one another, both the facts and their feelings, and to identify the issues causing the dispute.

IV. Problem Solving
With the help of the parties, the mediator creates a list of problems or issues of concern and then prioritizes the list (when appropriate). The parties then brainstorm possible solutions to the issues, which the mediator will record and help assess. It is important to note that, while the mediator may offer solutions, the parties ultimately make the decisions about which solutions are appropriate for them and their situation.

V. Agreement
The parties and mediator review the agreement, if reached, to see that it is clear, realistic, balanced, and specific, in terms that specify both what will be done and when it will be done. Written agreements can help prevent future misunderstandings as to who agreed to do what and so should address how possible future problems will be handled. Both parties sign the final written agreement, and each party receives a copy.

If the mediation session ends without resolution of the conflict, the case can be remediated, the parties may choose to end the process, or they may choose to move to a more formal process (through Human Resources) for dispute resolution.

VI. Implementation and Follow-up
Two weeks after the mediation session, the Ombudsperson sends an evaluation form to the parties requesting feedback about the mediation and mediator. If the problems persist, the parties may remediate or consult other resources as noted above.

The Prevention and Resolution of Discrimination, Harassment, and Sexual Misconduct at Hood College, board of trustees' Policy 55 (PAR)