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Four Necessities for Mediation Success

These four attributes are integral to an effective mediation.

Fairness
The process and the person conducting the process must be fair. What’s more, all participants must perceive them as fair. Mediation is a level playing field. This safe, neutral environment is a good place to test the validity of an argument.

The mediator is a professional neutral. Without preconceptions, she can serve as a sounding board for every person’s position. 

Respect
Agreeing to mediation shows respect for others. It signals a willingness to listen. This signal is reinforced by exercising courtesy and diligence in the scheduling process and following through up to, at, and after the meeting.

Communication
Any credibility earned before mediation is squandered if parties demonstrate they are not listening during negotiations. Failure to listen is shown by an inappropriate response, such as shouting at or insulting the opponent or refusing to continue participation.  It may seem counter-intuitive, but the mediator can facilitate communication between parties by separating them and using shuttle diplomacy to calmly convey each party’s message.

Trust
No negotiation result is satisfactory if the parties do not trust the other side to follow through. If mistrust has arisen due to past misunderstandings and broken promises, part of the mediator’s job is to re-build enough trust to resolve the dispute.

One solution to this problem may be to use a different negotiator at mediation, someone who does not incite personal animosity. Another solution is to make sure all agreements are specific and documented before parties leave the mediation. Particularly when the relationship has been hostile, the mediator is the linchpin in parties’ trust in a negotiated agreement.

3 Reasons Why I Talk to the Injured Worker

TRUST, CATHARSIS, COMPREHENSIVE RESOLUTION

 

Near the start of every mediation, once each side is in their own caucus room, I spend time talking directly with the injured worker. There are at least three reasons to do so.

1. I want to build trust in the mediation process.

The injured worker needs to feel part of and emotionally invested in the mediation process.  The injured worker is probably unfamiliar with the mediation process and may be apprehensive. The parties may distrust each other. Empathy is one of the traits of a good mediator.  I assure the injured worker that nothing will happen that the injured worker does not agree to. When the injured worker trusts the mediator and the mediation process to be fair, the likelihood of settlement increases.

2. Catharsis is part of the settlement process.
The mediation may be the closest the Injured Worker will get to a day in court.  Telling the story is a prerequisite to accepting settlement.  I want to make sure the Injured Worker gets the chance to tell the story in a neutral setting. Letting out emotions is good, and crying not uncommon.  Occasionally an attorney will intercede and take the place of the client to tell the story from the client’s viewpoint.  This is a mistake.
3. Sometimes the Injured Worker’s concerns are not being addressed.
At one mediation, when it looked like the attorneys had wrapped up all the issues, the Injured Worker asked me, “When will I be able to go back to work?”  A return to work was not part of the attorneys’ deal, and I had to rewind the process to make sure the Injured Worker’s concerns were addressed.  When the Injured Worker feels able to speak directly to the mediator, this type of omission– which could lead to problems for all participants later– is less likely to occur.

I participated in many workers compensation mediations before I became a mediator.  I never saw a mediator take the time to talk to the injured worker. Instead, I saw mediators create a barrier between themselves and the injured workers that made settlement more difficult. I work hard to make sure no communication barriers exist.