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My Mediation focus.
My mediation focus is finding real alternatives to litigation, rather than
processes that merely ‘soften’ litigation. My interest is to
facilitate the movement from mediator-centered settlement conferences
where bargaining is positional, to party-centered mediations aimed at
better understanding and interest-based bargaining. Consequently, my
approach to mediation differs substantially from the current and dominant
paradigm of commercial mediation. Effective
communication is essential, so I work to have the parties communicate
directly to the greatest extent possible. The
benefits of direct communication rather than shuttle mediation can be
substantial.
Mediation can be improved.
To get the real benefits of mediation, we must move beyond the typical
"settlement culture" and work to achieve "interest-based" bargaining in settlings where the parties themselves make the
settlement decisions. To be interest based, the control over both
the process and the decision making must be placed in the parties, not the
mediator or the legal counsel for the parties. To achieve this, the
mediator and parties need to spend time discussing
the parties' interests. Of course, the discussions are
challenging, but recognizing the difficulty
in settlement negotiations can itself help deal wit the challenges.
Mediation can be different.
Mediation can be more than a "haggling" approach to exchanging
offers & counters. It takes effort, but in a phased approach to
resolving the conflict, we can look for solutions as a group. Many
cases are settled through a traditional haggling approach that begins with
extreme offers/counter offers and ends in the "mid-zone."
Yet, many times there were options for settlement that were better for all
parties than the settlement signed by them. My goal is to help find
those better resolutions.
"Two-Table"
approach to Mediation. One method to focus parties and
counsel on the key decisions to be made is to use a "Two-Table"
approach to mediation. This method separates the key issues of the
"legal reality" (Table 1) from the "options for
resolution" (Table 2.) This approach is more
party-centered and is shown in a schematic.
Key to the success of this is direct
communication among disputants - aimed at increasing understanding and
therefore enhancing decision making.
Internet-based
mediation. Recent advances in both internet communications
and negotiation support systems permit parties to use the internet as a
tool for settlement. Mediation fits into the middle segment of
the dispute resolution spectrum,
and I work with parties to ensure that they retain the power of
resolution, rather than the mediator.
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Copyright ©2002
Joseph P McMahon Jr.
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Mediation v.
Facilitated Negotiation. Sometimes the distinction between
mediation and negotiations is blurred and a neutral can undertake an
effective and useful role as a neutral facilitator of the negotiations. The
distinction is not particularly important because the key issue is
ensuring that the participants and neutral understand the process goals
and the roles for each party.
Settlement errors.
I view part of my task as a mediator as being a coach - coaching the
parties against the most
common settlement decision making errors. These errors
often draw from the difficulty
in settlement discussions. See also my
article on the Settlement
Negotiator's Worst Enemy.
Mediation
agreement. Mediation is facilitated by a common
understanding of what the process will be. In many commercial
mediations, it is appropriate to sign an agreement that summarizes the
process and confirms that communications are confidential. I start
with a form agreement that is then tailored to meet the parties' needs and
expectations. Copy of the form agreement in
MS Word
Neutral
convening. When the parties are in a stage of conflict where
it is not clear how to best undertake ADR, a neutral convening is a way to
make these important decisions.
Mediation in high levels of conflict.
The fact that conflict is high does not mean that mediation is not
possible. Rather, it may demonstrate the acute need for
mediation. However, there needs to be an agreement on how the
parties will conduct the mediation - not so as to avoid the conflict, but
to ensure better understanding (rather than a repeat of prior ineffective
communications). In some situations, a negotiation
code of conduct may be appropriate.
Mediation
with government agencies. Mediation with government agencies
requires consideration of several important additional factors to ensure
efficiency and avoid undesirable consequences.
Most
cost-effective ADR method. If equity is put aside, there are
very cost effective ways to resolve conflict.
Consider also: Common
questions from attorneys regarding ADR, benefits
of communicating directly and My
article on interviewing mediators
ADR
Forms
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