Mediation offers a way for disputing parties to take the power over their case out of the hands of a judge or jury — or even, to some extent, their lawyers — and to come up with a solution that makes sense for their particular situation. The mediator’s role in this process is to guide the discussion, to help the parties see past their immediate irritation or frustration to the core underlying issues that matter most to them. Unlike a judge, the mediator does not issue a ruling or determine the terms of the resolution in any way; instead, the mediator sets the framework for the discussion, asks questions to draw out information the parties might not have realized was important, sometimes offers suggestions when the parties feel stuck, and (maybe most importantly) points out when it might be a good idea to step back for a few moments and take a break. Let’s look at how a mediator typically approaches the mediation process to gain insight into this important role.
Guiding Principles of Mediation
Mediators on Minnesota’s Rule 114 roster of qualified neutrals are bound by a Code of Ethics that serves as guiding principles. These include:
- Impartiality: A mediator must be neutral, not favoring one party over the other. A mediator who seems to take sides can take some of the control out of the hands of the parties.
- Competence: To be on the roster, mediators engage in at least 30 hours of training in conflict resolution. If a particular dispute seems like it is beyond their abilities, a mediator should not accept the case.
- Confidentiality: Mediators cannot disclose anything from their discussions with the parties, and cannot be called on to testify about what happens in mediation. Parties need to know they are free to be open with the mediator.
- Quality of Process: Mediators aren’t responsible for the outcome of mediation. They are responsible for making sure the process is appropriate, that it does not deprive the parties of autonomy.
Getting Past the Line in the Sand
Many people come into mediation locked into a position; they’ve drawn that line in the sand without having given a lot of thought to why they’re holding tightly to that position. What interests are they trying to protect? And might there be a different way to protect them?
Because they are neutral and because they don’t have a personal stake in the disagreement, mediators see the fight from a different perspective. They don’t mystically know the underlying interests that drive the parties’ to their positions, but they are trained to ask questions that can lead the parties to see those interests. What surprises parties time and again is that they might walk into mediation thinking there is no way they’re going to agree with that obstinate “so-and-so” on the other side of the lines in the sand, only to find out that they are concerned about many of the same things — and that they can take care of those things in ways that work for everyone.
Helping Participants Help Themselves
A cornerstone of mediation is self-determination — the parties are ultimately in control of their outcome. With that as a core principle, mediators approach each mediation with a fundamental goal: To empower the parties to participate in open, honest, and constructive conversations so they can decide if an agreement is in reach and what that agreement will look like.
Learn more about how the mediation process works in Minneapolis and St. Paul by calling Rubric Legal LLC today at (612) 465-0074.