Agreement to Mediate – This is what it’s all about
Mediation can be a little bit like Little Miss Muffet: when it is good, it is very, very good. But when it is bad, it is horrid. Roadblocks to successful mediation can take many forms from structural (bad location) to talent (amateur practitioners). It’s probably no surprise that these two issues can also be basic components of very successful mediation.
When conflict occurs or is identified as a negative force, management will naturally explore avenues of resolution. Mediation may not necessarily be the first choice. Not all conflict is suitable for mediation. For example, some conflict should be directive, as in arbitration. But in areas of conflict that can be best served by promoting understanding between parties – mediation is often a valuable consideration.
Be warned, mediation is not a “sit back and let it happen” exercise. Success depends upon genuine participation. We like to think that the first formal step – the agreement to mediate – has the ability to set the process on the right path. Most mediation professionals will request an agreement signed by both parties that acknowledge the understanding of the following:
Participants: The mediator’s role needs to be fully understood. This individual must be absolutely un-biased. Trust and fairness are the hallmark of a good mediator. The best mediators show no bias to the extent of making sure private caucus time is given equally to each party. For the participants, how will each party be represented? Most peer to peer, management to employee issues are represented by the individuals only. If counsel is requested (usually for issues involving government mandate) both parties should be equally represented by counsel. And finally, while commitment to understanding and resolution are the ultimate goal, each party needs to know they have the ability to terminate with proper notice.
Disclosure: This is the time that the mediator(s) must be absolutely clear about any relationship or experience with or concerning either party which may influence neutrality. This is an opportunity for either parties to ask questions. We’ve seen situations where even the appearance of a conflict of interest discovered late in the proceedings has destroyed an otherwise successful mediation. When you mediation, your confidence in this process is paramount.
Confidentiality: Unlike adjudicated proceedings, mediation has the protection of confidentiality. Most agreements to mediate will included language that declares that all statements made are privileged settlement discussions and are made without prejudice to any legal position. In other words, statements and declarations made during mediation will not be disclosed and are not admissible for legal proceedings.
Records: The Agreement to Mediate will include a statement indicating how and when documents from the sessions will be destroyed. No records will be kept concerning the proceedings.
Fees: Fee structure should be detailed and easy to understand. For example, at Colorado NDR, there is an application fee usually met by both parties. The detailed hourly fees will be explained by logistics (location), fee and party responsibility.
Do all mediations result in resolution? The answer is no. Results are varied and valuable. As always – please send us your questions and comments!