What is Mediation?
Mediation is a consensual, self-determined process in which participants work together with the facilitation of an impartial, trained third party to address the conflict.
Its purpose is to:
- clarify issues and interests
- express feelings
- explore options
- be heard
- craft a voluntary, mutually agreed-upon outcome
The Fundamental Principles:
- balanced and respectful process
- direct or other meaningful participation
Frequently Asked Questions About Mediation:
How do I set-up a mediation? You may contact our Program Coordinator by phone at (203) 782-3508 or email email@example.com. You may also contact us via our website, www.community-mediation.org. When you call CM, a member of our team will talk with you about your specific concerns and help you decide if mediation is a good fit. If it is, the other party in the dispute must be contacted and asked to participate in the mediation. We encourage you to make that request. You might recommend that the other party read more about the mediation process on our website or contacting us and requesting informational materials. If you would prefer, CM can contact the other party to explain the process and invite him or her to participate. If the other party agrees to meet, we will schedule a mediation session at a mutually convenient time and place. If you wish to utilize a dialogue or dispute resolution service other than mediation, the CM staff can discuss this possibility with you as well.
Why should I try mediation instead of calling the police or suing? When a dispute is discussed in mediation without blame and hostility, both parties are more likely to understand and respond in a positive way. Mediation avoids the embarrassment, cost, and time of the court system, and you can work out your own agreement rather than having a decision handed down by a judge or jury. If no agreement is reached, you can proceed with legal action if you choose. (Also read “Why Choose Mediation?”).
What does mediation cost? CM uses a sliding scale method, which is based on the household income of all participants, to determine the cost of the mediation session.
What sort of disputes can benefit from mediation? Conflict in many different situations can be managed through communication and mediation. A neutral third party can help solve problems between neighbors, landlords and tenants, consumers and merchants, organizations, businesses, co-workers, housemates, church members, and others. We offer mediation on issues such as pets, noise, lifestyle, rental agreements, money and more. We are available to address any dispute that could conceivably be addressed through dialogue, as long as both parties are genuinely interested in finding a resolution to the problem and can make decisions for themselves.
What is the mediator’s role? Our mediators are local, successful professionals trained in communication and conflict management. They have a wide variety of career backgrounds and interests, and they share a commitment to serve their community. They volunteer to serve as impartial third parties because they believe in the power of collaborative negotiation to resolve conflict. Prior to mediation, the mediators are provided only with a brief summary of the situation to be discussed and the names of the participants. Mediators are not assigned to a case if they know the participants personally or if they have any stake in the outcome of the mediation. Mediators do not serve as judge or jury, nor do they seek to determine right and wrong or place blame. Mediators do not impose a decision, like a judge or arbitrator, nor do they give legal or professional advice. Rather, they facilitate communication by helping people explain their viewpoint, clarify issues, identify underlying concerns, explore possible solutions, and, where possible, reach a mutually acceptable agreement.
CM tries to enlist two mediators for each mediation session. Having co-mediators brings the wisdom of an additional person to the table, which often contributes to achieving a successful outcome.
What happens at a mediation? A mediation begins by welcoming and introducing all participants, followed by an opening statement from the mediator. Each party will get uninterrupted time to describe the conflict from their perspective while the mediator and other party listen. The mediator asks clarifying questions along the way, which often brings out important information that may not have been known or understood before. Sometimes, the mediator asks for a private meeting or “caucus” with one disputant at a time in order to allow them to express their thoughts more freely or to explore possible solutions with them. Either party in mediation also can ask to caucus privately with the mediator at any time.
In the final part of the mediation, potential resolutions are discussed. The mediators have no intent or role in influencing the outcome. Their only interest is to help negotiate agreements that are satisfactory to both parties. If the parties agree on steps to take, their decisions are written into an agreement that spells out what will be done. That agreement is signed, and copies are given to all participants.
What if the other side does not stick to the agreement? Mediation agreements only include realistic steps that both parties are willing and able to carry out. Our experience is that mediation agreements usually hold up because the signers developed it themselves. However, the parties anticipate what the consequences will be if the agreed-upon actions are not taken and include in the agreement future steps that they will take if the agreement is not kept. If the parties wish, the written agreement may be considered binding in the same way a written contract is binding. To do so, it must contain a clear statement that each disputant: 1) wants the agreement to be binding and 2) understands that the agreement is admissible in court should enforcement become necessary. Mediation agreements do not imply other means of enforcement, such as intervention by police or sheriff’s officers. CM does not monitor or enforce its mediation agreements. If an agreement breaks down at any time, the parties can always return for further help, or seek alternate means for resolving their dispute.
Is mediation confidential? Yes. For the parties to feel free to discuss the issues openly, everyone present signs a confidentiality agreement before the mediation session begins. Confidentiality means information revealed in the session will be kept private and not shared with others outside the mediation or in any future legal case.
How long does a mediation session take? Mediation sessions are scheduled for two hours. Although many sessions do not take the full two hours, the parties are expected to set aside that amount of time. Occasionally, a second mediation session is needed, which can be scheduled at the end of the session, if both parties agree. Please bring your calendar with you to check your availability should another session need to be arranged.
Where is the mediation held?It is important that a mediation be held at a neutral site. We usually arrange to hold the sessions at our offices or another neutral location that is convenient for the parties, such as a church, library, police station or community center.
CM Staff and Volunteers follow these 4 codes of ethic:
Mediation is based on the notion that the disputants, in resolving their own problems, will reach agreements that are more effective than any solutions imposed on them by outside third parties, including judges, arbitrators, prosecutors, police, parents, or mediators.
Self-determination is the fundamental principle of mediation. The mediation process relies upon the ability of the parties to reach a voluntary agreement. Any party may withdraw from mediation at any time. No party to a mediation shall be forced against their will to reach an agreement.
Notes: 1. The mediator may provide information about the mediation process, raise issues, and help parties explore options. The primary role of the mediator is to facilitate a voluntary resolution of a dispute. Parties shall be given the opportunity to consider all proposed options and to accept or reject them. 2. A mediator cannot personally ensure that each party has made a fully informed choice in reaching a particular agreement. Mediators, however, are responsible for making sure that the parties are aware of the importance of making informed decisions by consulting other professionals, when appropriate.
A mediator shall conduct the mediation in an impartial manner.
The concept of mediator impartiality is central to the mediation process. A mediator shall mediate only those matters in which she or he can remain impartial and neutral. If at any time the mediator is unable to conduct the process in an impartial manner, the mediator must withdraw.
Notes: 1. A mediator should avoid acting in any way that looks like he/she favors one of the parties. The mediation process is enhanced when the parties have confidence in the impartiality of the mediator. A mediator shall examine what his/her own values, biases, or prejudices might be in a particular dispute with the parties and shall withdraw from the case if he/she feels unable to maintain neutrality.
2. Throughout the proceedings, the mediator shall remain an advocate of the process of mediation–the free and open exchange of information between two or more parties in conflict–but shall never play the role of advocate for one of the parties. In addition, as a neutral facilitator, a mediator shall not offer the disputants any legal advice, counseling, or religious or moral guidance. Mediators should suggest that the disputants seek outside professional help, when appropriate.
3. A mediator shall disclose all actual and potential conflicts of interest reasonably known to the mediator. Such conflicts of interest shall include, but not be limited to, prior contacts or dealings with one or more of the parties. After this disclosure, the mediator shall not mediate unless all parties choose to keep the mediator. If at any time during a mediation a CM staff member or a disputant requests the withdrawal of a mediator, the mediator will immediately comply. Whenever possible, mediators shall avoid outside interactions with the parties regarding the mediation.
4. At times, there may be strong pressures on the mediator to settle a particular case or cases. The mediator’s commitment must be to the parties and the process. Pressures from outside of the mediation process should never influence the mediator to force parties to settle.
A mediator shall maintain the reasonable expectations of the parties with regard to confidentiality.
The reasonable expectations of the parties with regard to confidentiality shall be met by the mediator. The parties’ expectations of confidentiality depend on the circumstances of the mediation and any agreements they may make. A mediator shall not disclose any matter that a party expects to be confidential unless given permission by all parties or unless required by law or other public policy.
Notes: 1. As the parties’ expectations regarding confidentiality are important, the mediator should discuss these expectations with the parties. Any party who wishes maximum confidentiality should have that desire respected to the extent possible.
2. If the mediator holds private sessions or caucuses with the disputants, the confidentiality of these discussions should be discussed prior to the initiation of the private sessions or caucuses.
3. In order to protect the disputants and the mediation, a mediator should avoid communicating information about how the parties acted in the mediation process, the specifics of the case, or the agreement reached.
4. When the parties have agreed that all or a portion of the information disclosed during a mediation is confidential, that information should be inadmissible in a court of law. The mediators and CM are obliged to resist to the limits of the law any disclosure of confidential information, unless all parties, in writing, have agreed to disclosure.
5. Exceptions to confidentiality include:
• harm to oneself and/or others
• unreported child abuse and/or neglect
• unreported elder abuse and/or neglect
In these cases the mediation will be terminated and the staff mediator will report to the appropriate authorities.
6. Any communication made by a party showing intent to commit any unlawful act is not within the reasonable expectations of privacy and shall be disclosed to the appropriate authorities.
4. Fairness of the Process
A mediator shall conduct the mediation fairly and in a manner consistent with the principle of self-determination by the parties.
A mediator shall work to ensure a fair process in order for mediation to be effective. There should be adequate opportunity for each party in the mediation to participate in the discussions. The parties decide when and under what conditions they will reach an agreement or terminate a mediation.
Notes: 1. The parties and mediator should agree on who should be present at the mediation. The parties and mediator may agree that others may be excluded from particular sessions or from the entire mediation process.
2. The primary purpose of a mediator is to facilitate a voluntary agreement. A mediator, therefore, should not provide professional advice and should recommend, when appropriate, that parties seek outside professional advice. A mediator shall advise parties to seek legal advice when professional opinion on legal rights or the legality of a particular action is needed. If it appears that a disputant may need counseling, the mediator shall suggest appropriate referrals, including drug and alcohol counseling, domestic violence agencies, and/or mental health services. If necessary, such referrals may be done privately.
3. A mediator shall withdraw from a mediation because of incapacity; an inability to remain impartial; a lack of commitment by the parties to the mediation; or a lack of competence by the mediator to handle the mediation effectively.
4. A mediator shall end a mediation session if the mediation is being used to further illegal conduct, or if a party appears to the mediator to be unable to participate due to use of drugs or alcohol or other physical or mental incapacity.
5. Mediators shall end a mediation session if it becomes apparent that mediation is not appropriate, for example, when domestic violence is involved. In such cases, the mediators or CM shall inform the parties of other options, such as counseling or legal advice.
6. Before each mediation, the mediator shall explain that attendance at the mediation is voluntary, that the parties are not bound to come to an agreement, and that parties are free to withdraw from mediation at any time and seek other solutions.
7. If the mediator believes that the agreement reached through mediation is illegal, unworkable, the result of bad-faith bargaining, or grossly unfair to any of the parties, or if the mediator believes the agreement may be damaging to an unrepresented third party, the mediator shall inform the parties of such reservations and seek to lead them toward a more appropriate resolution. If the parties insist on what seems to the mediator to be an inappropriate agreement, the mediator shall withdraw from the case and explain why.