Better, more effective mediation exists.
Don’t get me wrong, traditional mediation is wonderful. My clients usually experience good results from the mediation structue practiced in this region. That model, in essence, has the two parties agreeing on a mediator, a place and a time to come together and work through as many points of disagreement as possible in one session. Usually, the mediation is from a few hours to all day, though mediations occasionally can be multi-day events.
But, I am convinced that is not the best model. You see, when people come in for that single day, they have formulated their positions: what they want, what they will concede, and what is their “walking away” point. Attorneys can sometimes go beyond that in prepping their clients, but just because of training and economic forces (more of that talk another time), they rarely get past positions to issues.
So, the better model of mediation is one that I offer and which is appearing in other settings across the nation. Not everyone will choose it, but I do encourage people to engage in this extra-step mediation. The extra step involves each party meeting one on one with the mediator (with or without attorneys) to identify the issues that are behind the positions. In another post I will help define these two concepts, but for now it is enough to say that when one deals with issues rather than positions, creative resolutions can come about.
In that pre-mediation session, no sides are taken and no decisions are made or recommended. The mediator asks questions and listens intelligently to identify the issues. Then, when the mediation happens, the parties can move into resolution mode far quicker and readily.