You have agreed to use mediation to attempt resolution of a workplace dispute, disagreement, grievance or complaint and are somewhat anxious and uncertain about what is involved. First, a representative from the Alternative Dispute Resolution (ADR) staff will contact you to collect preliminary information, describe the ADR process being used, schedule the meeting and answer any questions you may have. Members of the ADR Office staff are neutral, objective resources and are not management representatives or employee advocates, nor do they have decision-making authority. The role of the mediator, or neutral, is to facilitate a mutually acceptable resolution to the dispute. ADR processes focus on satisfaction of interests versus positions rather than on blaming, winning or deciding whose right or wrong.
When you get to the mediation you can expect certain common behaviors, although mediation styles vary. Most mediators make some sort of "opening statement." The purpose of this statement is to take care of housekeeping details and discuss ground rules. Housekeeping details include introducing the participants, representatives and the mediator, checking to be sure parties with authority to settle are either present or available by telephone, finding out if there are any time constraints, and providing logistical information such as the location of caucus rooms, rest rooms, and telephones. Ground rules for the meeting will also be discussed and usually include acknowledging the confidentiality of communications made to the mediator, a commitment to civility and respect in the mediation, and a requirement that parties not interrupt each other. The mediator generally assures both parties they will always have a chance to respond and be heard.
The mediator then describes the process that will be used to bring the parties to resolution of the dispute. Most mediators use separate caucuses in which each party speaks privately to the mediator. Three aspects of these caucuses are usually emphasized. First, most mediators assume the confidentiality of what is communicated in the caucus and ask permission before conveying information to the other side. While a party may initially be reluctant to allow the mediator to disclose certain information, it is sometimes critical to the process. For instance, if you have the "smoking gun" and tell the mediator about it but do not allow the mediator to convey some version of this information to the other side, the information will not help resolve the dispute. Few mediators would think it worthwhile to try to move the other side on the basis of "secret" facts.
Second, mediators often use the caucus to play "devil's advocate." The mediator will try to assure the parties in advance that appearing to take one side "for the sake of argument" does not mean the mediator is necessarily convinced by that position. Rather, it is a technique for exploring the underlying interests of the parties. This must often be explained again during a caucus because parties have become so invested in their positions that alternative views evoke an emotional response. Third, mediators usually explain that the amount of time spent in a particular caucus in not indicative of anything. Clients sitting in one room while the mediator is in another room with the other client and his/her lawyer may fear they are not getting equal time, or suspect - quite accurately - that the mediator is discussing their position.
Most mediators try to ascertain whether the parties understand what the process is going to be, answer questions, and gain the assent of the parties to participating in the process. After the opening statement there is a great deal of variation in how mediators operate. I spend some time trying to test the parties' appreciation of the inevitability of resolution (through the full panoply of litigation, or some agreed upon resolution) and their understanding of the costs (direct, indirect, financial, emotional, and intangible) of continuing a dispute. Some mediators go directly to caucus in order to ascertain the positions of the parties.
Somewhere early in the mediation, most mediators ask clients to tell their stories. While some call this "venting," many consider this phase the most important part of the mediation. Only clients know their real interest in the dispute. Most mediators engage in "active listening" to be sure they understand what the client is saying.
At some point, the mediator may begin shuttling between the parties, conveying possibilities and trying or testing positions. Do not be surprised if, when you say to the mediator, "You tell them such and such," the mediator refuses. One of the tools that mediators use is their ability to control the timing of exchanges of positions and information and their ability to phrase neutrally a contentious position. In addition, do not be surprised if the mediator waits some considerable time before talking settlement or resolution ideas. Because the parties are often so embroiled in the dispute, they may have failed to objectively explore their interests and the possibilities for resolution. Jumping directly to settlement discussions is often a mistake and may sometimes result in settlement (implying winning and losing) in lieu of durable resolutions.
If the mediation goes well, the parties will reach a resolution and the mediator will assist them in preparing a Resolution Agreement. Most mediators will not let the parties leave until some document embodying the agreement has been written and signed by everyone. While there may be a need to further refine the agreement, it is vitally important to reduce the major aspects to writing. It is fairly common for parties to subconsciously convert their mental construct of the deal they "might have gotten" into a belief that was what they agreed to. With a written agreement, all parties can simply point to what was signed. Certain items are often included in these agreements. The Agreement to Mediate, signed by all the participating parties prior to beginning the mediation, as well as the Resolution Agreement, will usually include specifics about confidentiality. Second, the agreement will most likely include a written statement explaining the role of a neutral intermediary and noting that the mediator cannot act as an advocate for either party and that the mediator has no decision making authority. Third, the mediation agreement typically specifies immunity and indemnification for the mediator. Though the possibility of successfully suing a mediator is remote, this kind of provision keeps even the parties from being able to exert improper pressure on the mediator during the course of the mediation.
When going into your first mediation, expect success. You are unlikely to be disappointed.