In "Getting to Yes", by Fisher and Ury, a story is told about two sisters who argued over who was to get the last orange in the kitchen. They settled by cutting the orange in the middle and each took her half. One sister took her half orange in the den, ate the fruit, and threw away the peel. The other sister stayed in the kitchen, used the peel to make marmalade, and threw away the fruit.
Each sister liked to yell at her sister, and they did settle, but with a little mediation and a discussion of what they really wanted, each sister could have had all she wanted.
Not all problems can be mediated by asking, "Why?"
Not all problems can be mediated by asking, "What is the real deal?"
However, by asking the right questions, and using the other tools at his disposal, a mediator should offer options to the parties that makes the settlement possible.
Tuesday, July 28, 2009
What does a mediator do?
A mediator's goal is to settle the controversy. A mediator is not a judge, and cannot make a ruling or force the parties to do something. The mediator does not decide who is right and who is wrong, but strives to help both parties settle the case. To help the parties speak freely without the fear of their statements being told to the Judge, statements made in mediation are confidential, (confessions about the abuse of children are an exception ). A mediator typically does three things:
1. The mediator talks to both sides to find out what the facts of the dispute are. He asks each party if they have made a good faith commitment to attempt to settle the case. The mediator makes a list of what needs to be settled. He spends about the same time with each side.
2. Then the mediator, being more aggressive, goes back to each party, to ask, "What is the real deal here? What is really going on?" The mediator gets to the bottom line, to get the really important facts that are bothering the parties.
3. Then the mediator begins to go between the parties, not simply as a wimpy messenger, but offering alternatives, pushing, pulling, and closing the deal. Everyone should walk away with a copy of the signed settlement agreement; the case is over except for the typing.
As a part of the process, he may remind everyone that a trial will cost another $5,000, in advance, and they are out of money.
He may tell everyone that they are the last people who actually love the children, who can make the rules. A complete stranger, the Judge, will make all the rules at trial.
He may share how the Judge looked at a particular problem in the past. How does the Judge view an alcohol problem? or a drug problem? or smoking? or tattoos on children? or body piercings on children? or overnight guests for the adults?
As a lawyer himself, a mediator may point out the difficulties with your case. The mediator is not the Judge, but he does have his eyes open and can see the same weaknesses in the case that the Judge may see.
The mediator has all parties sign the written agreement. If things go well, the legal matters are settled, and perhaps the problems beyond the legal matters, are settled.
1. The mediator talks to both sides to find out what the facts of the dispute are. He asks each party if they have made a good faith commitment to attempt to settle the case. The mediator makes a list of what needs to be settled. He spends about the same time with each side.
2. Then the mediator, being more aggressive, goes back to each party, to ask, "What is the real deal here? What is really going on?" The mediator gets to the bottom line, to get the really important facts that are bothering the parties.
3. Then the mediator begins to go between the parties, not simply as a wimpy messenger, but offering alternatives, pushing, pulling, and closing the deal. Everyone should walk away with a copy of the signed settlement agreement; the case is over except for the typing.
As a part of the process, he may remind everyone that a trial will cost another $5,000, in advance, and they are out of money.
He may tell everyone that they are the last people who actually love the children, who can make the rules. A complete stranger, the Judge, will make all the rules at trial.
He may share how the Judge looked at a particular problem in the past. How does the Judge view an alcohol problem? or a drug problem? or smoking? or tattoos on children? or body piercings on children? or overnight guests for the adults?
As a lawyer himself, a mediator may point out the difficulties with your case. The mediator is not the Judge, but he does have his eyes open and can see the same weaknesses in the case that the Judge may see.
The mediator has all parties sign the written agreement. If things go well, the legal matters are settled, and perhaps the problems beyond the legal matters, are settled.
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