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Mediation is a voluntary, efficient method of resolving business and interpersonal disputes. The mediator helps the parties identify, clarify and communicate their interests and positions and facilitates negotiations by providing a process that is appropriate for the parties’ needs. The mediator remains impartial and does not represent either side or provide legal advice, and does not decide the dispute for the parties. Mediation allows the parties to control the timing and outcome of the dispute resolution process and preserve and even enhance business and personal relationships. Mediation is a confidential process and confidentiality can be built into any mediated agreement. [Benefits for Business/Individuals] [How Mediation Works]

Arbitration is the voluntary submission of a dispute to a neutral third party (or parties) for decision. Arbitration is similar to litigation in that each side presents evidence and legal arguments and the arbitrator has the responsibility of analyzing the facts, applying the law, and handing down a decision in favor of one side or the other. Parties sometimes prefer arbitration because they can choose an arbitrator with subject matter expertise or because the process can be more streamlined and thus more cost-effective than litigation.

Facilitation is a process in which a group invites a neutral third party to help it increase the group’s effectiveness by improving the way it identifies and solves problems and makes decisions. The facilitator has no decision-making authority, her goal is to help the group develop a more effective process.

S. Green Dispute Resolutions offers mediation and conflict management training to lawyers, businesses, and other interested parties. Groups of 12 to 20 persons can be accommodated and training is tailored to a particular client’s needs.

In the corporate setting, mediation training can be helpful for human resource or EEO staff as well as in-house lawyers. Conflict management training is appropriate for all personnel. Law firms can take advantage of either type of training, or a shorter seminar on effective representation of clients in mediation.

The mediator is an impartial third party who facilitates the negotiation between/among the parties to help them resolve their dispute. The mediator does not have any authority to force the parties to come to agreement and will not decide the issues for the parties. In addition, although the mediator may be a lawyer, she will not represent either side in the mediation. Parties are free to consult with their lawyers beforehand or request that they attend the mediation session. The mediator helps parties to clarify their underlying interests in settling the dispute and helps them evaluate options for settlement. The mediator also helps the parties take a more objective look at their case so that the party and his advisors can evaluate the consequences of any failure to come to agreement (such as the costs of and expected outcome of litigation). The mediator manages the process so that, in cases in which emotions run high, meaningful discussions can still take place.

The parties have a front row seat in mediation. It is truly a party-centered approach that recognizes the ability of individuals and businesses to act in their own self-interest to resolve disputes when provided with any necessary legal advice and the support of the mediation process. Parties are expected to prepare for mediation by considering what their underlying interests are in resolving a particular matter. They are asked to consider, beforehand, a number of possible solutions to their dispute and to come to mediation with the understanding that mediated resolutions are a question of give and take: they are unlikely to get 100% of what they want in a mediated settlement. Parties should research whether there are any objective criteria, which support their settlement options (such as fair market value, professional standards, tradition, standard trade practices, regulations, or legal precedent). They should consult with their legal advisors and determine the financial and other consequences of failing to come to a negotiated agreement. They should bring copies of all pertinent documents to the mediation and they should be prepared to provide a succinct description of their perspective of the problem. In complicated cases, and those in which litigation is already ongoing, it can be helpful for parties not only to consult with their attorneys beforehand, but also to invite them to attend and participate in the mediation session. [Mediation Worksheet]

Attorneys can provide crucial support for their clients before, during, and after the mediation session. Beforehand, attorneys can help their clients prepare for the session by helping them evaluate their underlying needs as opposed to their initial settlement position. As emotional, financial and other needs are clarified, additional options for settlement may become clear. Attorneys provide a valuable service when they help their clients accomplish this important groundwork. In addition, they can help clients explore their BATNA (Best Alternative to a Negotiated Agreement). Originally articulated by Roger Fisher and William Ury in their classic book on negotiation, Getting to Yes, the BATNA remains an important part of helping clients decide whether, and on what terms, to settle a dispute. Where litigation is the best alternative to a negotiated agreement, attorneys can make sure that the party has a full understanding of what that might involve with respect to legal fees, court and other costs, time away from work, and expected outcome. They can also help the client to marshal objective standards to support his bargaining position, especially any relevant legal precedent. Lastly, attorneys can alert the mediator to interpersonal party dynamics so that the mediator can consider the appropriate structure and facilities for the mediation.

Many cases require the presence of legal counsel during the mediation session. In those instances, attorneys can help their clients by ensuring that the mediator and other side has fully understood the client’s position and interests. Lawyers can also help clients evaluate proposals as they are made, recognizing, that in the heat of the moment, clients may lose sight of the big picture. Often, lawyers provide invaluable technical and legal advice regarding how to structure proposals.

Where mediation ends in a settlement agreement, clients will often request their lawyers to reduce it to writing. In other cases, the mediator may be requested to draft the agreement for review by the client’s attorneys. Mediation may eliminate some amount of litigation that an attorney may otherwise engage in, but clients who are helped to be successful where mediation is appropriate will undoubtedly return to that lawyer in the future for help with other matters. Being an effective representative for your client in mediation makes good business sense.

Mediations generally, but not always, begin with a joint session of all the parties and their representatives around one table. After the initial introductions, the mediator will briefly describe her role and that of the participants. She will explain the process to be followed that day, set the ground rules, if any, and make sure everyone has signed the agreement to mediate. Then she will normally ask the party who initiated the mediation to provide a brief summary of his perspective of the issues. After the first party has finished, she will ask the opposing party to provide a similar summary. The parties are then given an opportunity for back and forth discussion and the mediator may have clarifying questions for each side, as well. Usually, at some point, the mediator will suggest meeting with each side separately. It is through such a series of joint and separate sessions that the parties will be able to arrive at a negotiated agreement, if that is what they wish to do. At the end of the session, any agreement reached, or at least a memorandum of the agreement, will be reduced to writing and signed by all the parties before they leave the premises.

It is important to remember that one of the benefits of mediation is that it is a flexible process. In some cases, it is not advisable for the parties to negotiate face-to-face. In those rare cases, the mediator can structure the mediation in a “shuttle diplomacy” type of format that maintains the distance which the parties need in the particular case but allows negotiations to move forward. Ms. Green has experience helping parties in both types of settings.

Mediation of workplace disputes is a valuable means of maintaining office productivity, especially when it is offered as a first stop on the dispute resolution continuum. When mediation is an option for dealing with workplace conflict, disputes can be explored and resolved before they destroy office morale and productivity and result in formal EEO complaints.¹ Individuals appreciate the opportunity to fully air their perspectives of a situation² and often learn new information that helps them to more fully appreciate the other side’s perspective. Such insight can help generate momentum for settlement. The process is useful not only for employee-manager disputes but also for those arising between employees.

Mediation is also successful at resolving workplace disputes after formal EEO complaints have been filed or when litigation has been initiated. Employers find that early disposition of EEO cases benefits the bottom line by freeing managers and other staff to focus on productive work.

Ms. Green has been granted Advanced Practioner Status for workplace disputes by The Association for Conflict Resolution. She is well-versed in problem-solving, as well as transformative, models of mediation.

Applicants for Advanced Practitioner status with ACR's Workplace Section must fullfil the following requirements:

Applicants must also provide: two (2) letters of reference from colleagues who are familiar with their workplace mediation, two letters from clients who have used their services for the mediation of workplace issues, and one letter of reference from a mediator to whom they have provided mentoring or supervision services. Maintaining the status requires remaining in good standing with the ACR, completing continuing education requirements, and maintaining up-to-date liability insurance coverage.

^1. For the fiscal year 2000, the U.S. Postal Service found that its REDRESS mediation program was in large measure responsible for 13.8% fewer formal EEO complaints being filed and that successful resolution of disputes that went through mediation was nearly twice the rate of resolution of disputes that remained in the traditional counseling process. 2001 Comprehensive Statement on Postal Operations.

^2. "Research on grievance systems indicates that one of the main opportunities that participants seek is a forum to present their views." McDermott, Obar, Jose and Bowers, An Evaluation of the Equal Opportunity Commission Mediation Program (Sept. 2000) at 90.

Conflict among family members, neighbors, and friends, following the death of a loved one, is all too frequent. Conflict can arise when wills are lost, when ?common-law? spouses are involved, when relatives live far away and a friend or neighbor who has been helping the deceased inherits substantial assets or is appointed as the executor, or when a second marriage, shortly before death, results in a new estate plan. Often, these cases lead to litigation, even where the amounts in dispute are relatively small. My experience mediating these cases is that parties are extremely grateful to their lawyers and the mediator when they are helped to resolve these cases expeditiously, confidentially, and efficiently. Mediation is an excellent process for sorting through the myriad relationships and the tortured paper trail that is often left behind when a person dies and devising a creative solution that meets the parties’ needs. The process recognizes and respects the emotional needs of the parties while encouraging them to keep a forward-looking attitude and to work towards a settlement of the dispute. The ability to craft resolutions that would not be possible if the case is submitted to a court for decision is a major benefit to all. My background in tax law allows me to work effectively with the parties’ attorneys in complicated estate cases.
[See article, "Mediation of Estates, Trusts, and Probate Cases"]

Adult guardianship mediation helps elderly patients and their relatives, social service agencies, and medical providers resolve the difficult issues regarding a person’s care when that person can no longer take care of all of his or her own needs.

Helen Smith has been living on her own for over twenty years since her husband died. Neither of her two children live in the metropolitan area. She enters the hospital after a fall and is treated for a broken hip. After an enquiry, the hospital social workers become convinced that Mrs. Smith’s home now constitutes an unsafe environment for her and are reluctant to discharge her without some kind of arrangements made for her care once she is home. Mrs. Smith, on the other hand, is adamant that she be allowed to return to her home.

Without mediation - Mrs. Smith’s children and the hospital may feel their only option is to petition the court for a guardian to make decisions for her.

With mediation - Mrs. Smith, her children, the hospital social workers, and perhaps, the attending physician, meet with the mediator who helps them identify and explore the parties’ needs and develop options for post-discharge care. Because the discussion is part of a neutral and structured process, everyone’s concerns are heard and acknowledged. The parties are able to develop a post-discharge plan that incorporates the least restrictive measures necessary under the circumstances.