judge may come up with a solution to which neither party is in favor. In contrast, mediation gives the
disputing parties opportunities to find common ground on their own terms, before relinquishing control
to outside forces.
Role of the Mediator
Successful mediators work to immediately establish personal rapport with the disputing parties. They often
have a short period of time to interact with the parties and work to position themselves as a trustworthy
advisor. The Harvard Law School Program on Negotiation reports a study by mediator Peter Adler in which
mediation participants remembered the mediators as “opening the room, making coffee, and getting
everyone introduced.” This quote underscores the need for mediators to play a role beyond mere
administrative functions. The mediator’s conflict resolution skills are critical in guiding the parties toward
reaching a resolution.
Steps of Mediation
As explained by nolo.com (http://nolo.com) , mediation, while not being as formal as a court trial, involves the
following six steps:
•
Mediator’s Opening Statement: During the opening statement, the mediator introduces himself or
herself and explains the goals of mediation.
•
Opening Statements of Plaintiff and Defendant: Both parties are given the opportunity to speak,
without interruption. During this opening statement, both parties are afforded the opportunity to
describe the nature of the dispute and their desired solution.
•
Joint Discussion: The mediator will try to get the two disagreeing parties to speak to one another and will
guide the discussion toward a mutually amicable solution. This part of the mediation process usually
identifies which issues need to be resolved and explores ways to address the issues.
•
Private Caucus: During this stage, each party has the ability to meet and speak privately with the
mediator. Typically, the mediator will use this time to learn more about what is most important to each
party and to brainstorm ways to find a resolution. The mediator may ask the parties to try to put aside
their emotional responses and resentments to work toward an agreement.
•
Joint Negotiation: After the private caucuses, the parties are joined again in the same room, and the
mediator presents any newly discovered insight to guide them toward an agreement.
•
Closure: During this final stage, an agreement is reached, or it is determined that the parties cannot
agree. Either way, the mediator will review the positions of each party and ask them if they would like to
meet again or explore escalating options, such as moving the dispute to court.
Ethical Issues
Both the disputants themselves, and those who attempt to facilitate dispute resolutions, i.e., mediators and
attorneys, must navigate a myriad of ethical issues, such as deciding whether they should tell the entire truth,
or only offer a partial disclosure. This conflict has long roots in history and has often been considered in terms
of consequentialist and deontological ethical theories. Consequentialist ethics, sometimes known as
situational ethics, is a way of looking at difficult decisions by considering their implications. Someone who
follows consequentialist ethics in mediation or arbitration would consider the impact of his or her decision on
the parties in light of their unique circumstances. In contrast, deontologist ethics bases its decision on
20
Chapter 2 Disputes and Dispute Settlement
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