June 2000

The Mediation Process

This bulletin provides general information concerning mediation of disputes. For additional information that is specific to mediation of family disputes, you should also see the bulletin called Family Mediation.

Mediation

Mediation is a voluntary settlement negotiation facilitated by a neutral third party who has no decision-making power.

Interest-based bargaining

The hallmark of mediation is its focus on the interests (or needs) of the parties, as opposed to their positions. Interests can be:

• substantive – needs such as money, control or resources
• procedural – needs relating to the process or the way in which a dispute is resolved
• psychological – needs relating to feelings or emotions about the issue.

Interests are the driving force behind every dispute. A position is only a way of meeting those interests. Mediators try to get the parties to consider interests rather than positions. By looking for these underlying interests, parties can open up positions and create new options for settlement.

The mediation process

The mediator will typically guide the process through four stages:

1. Mediator's opening statement-The mediator describes the process, establishes ground rules for conduct, reviews the agreement to mediate and confirms commitment to proceed.
2. Story development-Each party gives a synopsis of the facts of the dispute. The mediator then clarifies and frames the issues in terms acceptable to the parties.
3. Identifying the interests-Using questions, the mediator shifts the focus from positions to underlying interests, and ultimately formulates a goal statement incorporating all of the interests identified.
4. Generating options-The parties list and evaluate options for satisfying as many interests as possible, and, thereby, for reaching a settlement.

If a settlement is reached, the parties then discuss how to formalize the terms of settlement, usually either by written agreement or a consent order.

The mediator

A key step in any mediation is the selection of a mediator. As there are no universally recognized certification processes for mediators, selection must be based on each individual's particular training, experience and references.

The mediator must be impartial. He or she must have no connection with the parties to the dispute and must not have any interest in the outcome of the case. The mediator shapes the process; the parties control the outcome. The mediator:

• structures and manages the negotiation process
• establishes ground rules for conduct
• keeps lines of communication open and keeps the discussions on track
• acts as a sounding board, innovator and reality tester.

The mediator will usually assist in developing ideas for resolution but refrain from controlling this process, because the parties involved in the dispute are more capable of recognizing the essential elements of a workable, long-lasting agreement. A mediator will not usually arm-twist, or lean on one party, or suggest that a party is being unreasonable and should compromise. He or she will, however, encourage settlement and see that the merits of any proposal are tested. The mediator will also push the parties to consider the alternatives to a negotiated agreement, so they know the full consequences of walking away from a possible settlement.

Length of the mediation

The time required to mediate a dispute varies according to the complexity of the dispute. It can take less time if the parties are well prepared-in other words, they are knowledgeable about the facts and understand their underlying interests. Mediation can take longer if the parties are highly emotional, or simply need to discuss the issues at a slower pace in order to understand them more clearly. Because of the flexibility of the process, the mediator can accommodate all of these differences and move the mediation along at a pace with which the parties can be comfortable.

Individual mediation sessions are often three or four hours long. It is not uncommon for mediations, particularly those involving complex commercial issues, to be scheduled for up to a full day or more.

Comparison Between the Court Process and Mediation

The Court Process

• content based on legal rights and remedies
• neutral third party imposes a decision
• formal
• bound by rules and procedures
• public
• parties assert positions
• objective is to win or prevail

Mediation

• negotiation based on needs and interests
• neutral third party facilitates a decision
• informal
• procedurally flexible
• private
• parties assert interests
• objective is get what you need, and to solve a problem

For More Information

For more information on any of the programs described in this bulletin, contact:

Dispute Resolution Office
Ministry of Attorney General
PO Box 9222, Stn Prov Govt
Victoria, BC V8W 9J1
Tel: 250 356-8147
Fax: 250 387-1189
E-mail: AG.DRO.Victoria@gov.bc.ca
Web site: www.ag.gov.bc.ca/dro

Enquiry BC will forward long distance calls at no charge:

• in Vancouver, call 660-2421
  
• in Victoria, call 387-6121
  
• elsewhere in B.C., call 1-800-663-7867.

When you call, ask to be connected to the Dispute Resolution Office, Ministry of Attorney General.

Mediators

For names of mediators in your area, contact the British Columbia Mediator Roster Society, or check the telephone book for mediator service providers and mediation organizations. The British Columbia Mediator Roster Society can be contacted through the Dispute Resolution Office at the numbers listed on this page, or by e-mail at: mediators@mediator-roster.bc.ca

Or visit the society's Web site at: www.mediator-roster.bc.ca

June 2000
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