Who can be a mediator? The role of a mediator is one that many people may only consider once they participate in a dispute where they encounter a mediator. For some, becoming a mediator may feel like an unattainable or unfamiliar goal because the role can have misunderstandings or assumptions about how to become a mediator. For example, people often assume that one needs to be an attorney or a psychologist to become a mediator. While those professions can be helpful, they are not prerequisites for mediation success. Instead, mediation is an accessible and rewarding career for many people—from those pursuing a degree in mediation right away to those looking for a fresh start or side job from all kinds of careers. If mediation is a career path you are considering, it is essential to understand the role and how it works. This article will discuss the role of the mediator, the mediation process, the benefits of mediation, and tips for participating in and becoming a mediator. In addition, this article aims to outline what mediation is and how one can become an active participant in the process.
The Role of a Mediator:
A mediator is an independent, neutral party that works with the parties to find a resolution for the dispute they are facing. Mediation is a formal, guided negotiation, and a mediator serves as the guide for this process. Unlike a judge or an arbitrator, a mediator cannot tell the parties how the dispute should be resolved, but they can help the parties find new and exciting ways to resolve the dispute. Several critical aspects of the mediator’s position help illustrate the mediator’s role. These include:
- Independent: The mediator needs to be an independent actor. This means they cannot have personal, financial, or professional ties to either of the parties or the outcome of the dispute. If they do have some ties, they need to disclose this to the parties and get a waiver from the parties.
- Neutral: A mediator should also be neutral, meaning they will not take either party’s side or bring their own implicit or explicit biases into the mediation. They will act in a way that benefits or affects both parties equally. They must be impartial in both the subject matter and procedure of the mediation.
- Conciliator: Another aspect of the role of the mediator that makes it unique is that they work to help the parties collaborate in a conciliatory way rather than give the parties their opinion in the case. They are there to help the parties find their solution rather than to suggest the answers.
- Confidential: A mediator is usually bound by the ethics and rules of confidentiality, which means that everything spoken about in the mediation cannot be shared outside of the mediation. Additionally, what one party says to the mediator in confidence can only be shared with the other parties if expressly allowed. This helps build trust between the parties.
- Influential: A good mediator will understand that they influence the mediation from the first moment they contact the parties until they reach an agreement. A mediator can set the tone of the conversation and build rapport with the parties to encourage their parties to work together.
These characteristics of the role demonstrate just how helpful and vital a mediator can be to the resolution process.
Understanding the Mediation Process:
To further understand the role that a mediator plays, examining the mediation process will demonstrate what skills may be necessary to become a mediator. Depending on the mediator’s style and the parties’ needs, the process may change slightly to allow the parties more flexibility in resolving their dispute. However, these steps will likely be present as the parties work with the mediator to resolve the dispute.
- Agreement: The parties will need to agree to mediate the issue. Mediation cannot be forced on one party at the request of the other. However, in minimal situations, a court may order that the parties try mediation to resolve the dispute.
- Mediator’s Opening: The first thing that will happen in mediation is the mediator’s opening statement. This is the opportunity for the mediator to set the stage for the rest of the mediation. The mediator will outline the process, explain confidentiality, encourage collaboration, and clarify any questions the parties have.
- Party Opening Statements: Next, the parties will have an opportunity to present the dispute to each other from their point of view. This helps the mediator and the other parties understand where they are starting from and what is important. This is not an argument about winning but an information-sharing process.
- Joint Session: The parties may then move into a joint bargaining session. This means that the parties will be in the same room and begin presenting ideas for resolving the dispute. This step may last for the rest of the mediation, or it may be short or skipped if the mediator decides they need to be separated. The goal of these sessions is for the parties to speak freely and help create solutions.
- Private Caucuses: Before or after a joint session, the parties may go to caucuses, which are individual meetings with the mediator. Here, the parties can speak freely with the mediator and share information that may help them come up with a solution that will help the parties resolve the issue.
- Bargaining: The joint sessions and caucuses will continue until the parties reach an agreement and can work together in the same room. At this stage, the parties have shared the information they came to share, and they are now working together to craft the solution through collaborative negotiation.
- Agreement: At the end of a mediation, the parties will either reach an agreement that resolves the dispute or end the mediation without a resolution. If the parties resolve the issue, they will likely get the agreement in writing and create a plan to follow up with the agreement and see if it needs to change. If they do not resolve the issue, they may agree to another session, or they may move forward with other forms of dispute resolution or litigation.
Unlike litigation and arbitration, mediation does not guarantee a resolution at the end of the day. The goal of every mediation is to work toward a resolution, but only some disputes can be resolved so quickly. Mediators play a vital role in encouraging resolution. Still, they may only sometimes get the credit for ending the dispute.
The Benefits of Using Mediation:
Mediation is not only accessible for those hoping to work in the dispute resolution space, but it is also highly beneficial and successful for dispute resolution. Several benefits of using mediation to resolve a dispute include:
- Speed: One of the most common benefits of mediation is the speed with which a dispute can be resolved. Courts are often very backed up, and a dispute can spend years weaving its way through the system. Mediation can be scheduled quickly, and when successful, it can resolve a dispute quickly.
- Cost: The cost of mediation can be much less than litigation or even arbitration. Because it moves quickly, there is less time when the parties will need to pay attorneys, and if the parties can resolve the case, the party that needs to pay the other may have to pay less than the court could order. However, mediator fees can be more expensive than court fees upfront.
- Control: This is often a big part of why the parties choose to mediate because it allows them to control the outcome of their dispute rather than leaving it up to a court or other decisionmaker. This can ensure that the parties find a way to resolve the dispute in ways that work for them and allows them to work for a mutual resolution.
- Confidential: Mediation is usually confidential, which means that parties can participate in dispute resolution without having their dispute in the public eye. This can be particularly helpful for sensitive or private disputes, such as divorce or harassment claims.
- Informal: Litigation and arbitration can feel very formal, which can be intimidating for some parties. Mediation allows the parties to process their dispute in a much more relaxed setting.
- Non-Adversarial: When parties are in litigation, they will often lose relationships as they move through the process. Litigation is adversarial and puts the parties against each other. In mediation, the parties are encouraged to work together, and because the result is typically a collaborative resolution, the parties are less likely to be resentful of the other party. This can help preserve and develop relationships between the parties, especially if they intend to continue working together.
Because it brings these benefits and often helps the parties resolve their current disputes and those in the future, it can be a great choice for many disputes.
Tips for Becoming a Mediator:
Because mediation brings many benefits, good mediators are in high demand. If you are considering becoming a mediator, there are several steps that a person can take to determine if they would be a good mediator and to develop the skills necessary for mediation practice, including:
- Evaluate Your Experience: One of the first things that can help determine if mediation is the place for you. There are many areas and types of disputes that benefit from mediation, and mediators with direct experience in these fields help ease the process and avoid excess training. If you have a job or Degree in a field such as business, real estate, technology, or other specialized areas, the mediation world may benefit from your expertise.
- Earn Degree (s): If you do not have a bachelor’s Degree, it can be helpful to finish a degree in your field. While there are some dispute resolution degrees, completing a degree in your specialty can be more beneficial. You may also want to explore options for grad school or law school, as the strategy and understanding of the law can be helpful for mediation, although it is not necessary.
- Complete Training: If you do not pursue a graduate school degree in mediation, you will need to receive training in mediation and gain certification in the state or states where you intend to practice. In some states, this can include completing hours of supervised mediation.
- Start Your Practice: Once the training has been completed, you can start practicing as a mediator. It may be helpful to find a mentor in the field that can help you establish your practice and gain more supervised or tandem mediation to help you be more comfortable leading the mediation.
This is a very high-level overview of the process of becoming a mediator. If you are seriously considering becoming a mediator, ADR Times suggests doing further research and connecting to mediators in your state.
Tips for Participating in Mediation:
If leading mediation is not your goal, you may still encounter a mediation at some point in your life, and it can be helpful to understand how to participate effectively. This article has demonstrated that participating in mediation is best accomplished by understanding the process and the role of the mediator. Additionally, the following tips will help in keeping mediation moving and thriving.
- Expect Mutual Gain: The goal of mediation should be mutual gain. This means that you should enter a mediation expecting to win in some areas and lose in others, but overall, expecting that the resolution will benefit both parties.
- Find Common Understanding: To establish rapport and trust, you should look for objective areas on which you and the other party can agree. In a divorce, you can agree that the first couple of years were happy. This helps create trust, identify areas where the parties can find common ground, and help keep more joyful moments or positive feelings at the center.
- Divide People from Problems: When we are in the middle of a dispute, it can be easy to equate a person’s stance with who they are as a person. When you see the person and the problem as distinct from one another, it can help you empathize and understand their point of view.
- Define Success: It is important to remember that success does not necessarily mean a resolution. While that is the goal, the methods and ideas discussed in the mediation can lay the foundation for solving this dispute and others long after the mediation is complete.
A good mediator will set the stage for a welcoming and collaborative environment, but working through these ideas can help the mediator succeed in their role and ensure that mediation is successful in whatever way the parties need.