Chocolate chip cookies – good. Oreos – good. Chocolate chip cookies stuffed with Oreos – very good? Depends. Sometimes, combining two effective- or delicious – things is incredibly powerful. Or it’s a mess. Mediation and arbitration are two separate and effective methods for resolving disputes. Today, many businesses are taking advantage of a streamlined process that combines the two. It starts out as a Mediation and if things can not be resolved the Mediator switches hats and become an Arbitrator. What are the pros and cons of pursuing this option? Is med-arb a palatable combination for you?
Have you ever watched an MMA fight? You’ll see fighters who are loath to give up even when their bones are at the breaking point. Then there are others who “tap out” if a hold starts to feel uncomfortable, if they feel tired, if they don’t want to deal with the strikes that may be coming. This is a good way to look at caucusing; sometimes, you just have to say, “Ok, enough. I don’t’ have anything else.” Other times, you have to fight the good fight and give it your all. Often, mediators turn to caucusing when they feel uncomfortable, when they feel tired, and when they don’t want to deal with the emotion and tension that is coming.
Avoiding disputes is like avoiding a common cold. You may want to; you may try everything in your power to ward germs away; you may shy away from those who are infected. But all it takes is one sneeze, one cough, one person not sanitizing before they use your stapler.
Is mediation really mediation? Sometimes, what we think is mediation is not, not really. Think about it this way: you can make brownies using a mix or you can make them from scratch. The processes are different, and the results are going to be different as well. You’ll end up with brownies either way, but one method tends to yield better results. Mediation, under direction of practitioners like Gary Friedman, is like creating from scratch; you are going for superior results. Most mediators in Canada and the United States, though, go for the mix because it’s easier and faster. The results are often times not as palatable as they could be.
How many of you have recently been through a “full blown” investigation into workplace harassment only to find that both parties are going to have to return to work and may even have to work together?
How do you keep emotion out of the mediation process? That is like asking how you can keep the emotion out of a wedding or out of a goodbye. You can’t. There it is; emotions are often at the crux of mediation, and when conflicts have reached this point, it is very hard to separate feelings from facts. Mediators have to be able to balance the validation and recognition of your feelings while ensuring a fair resolution for both sides. If it sounds easier said than done, it is!
Comedian Lenny Bruce once said, “In the Halls of Justice, the only justice is in the halls.” I wouldn’t go so far as to say justice never happens in the courtroom, but the fact is that most civil cases never get there.
Just like going to the dentist, no one truly wants to go to mediation. The fact is that it is often a healthier, more productive way to settle disagreements. Just like with teeth – a tooth brush has its limits, sometimes we need a dentist. Hiring the right mediator is essential; not only must they be neutral and objective, they have to be able to create and maintain a safe environment.
On the USA Network’s Fairly Legal, the main character is a mediator. She single-handedly investigates, researches, blackmails, negotiates, and badgers her way to agreements. While it does have its moments, this show is one misconception after another. It makes for more dramatic television but it can also give people a skewed sense of what mediation actually is. By tackling some misconceptions, more people who could benefit from mediation will see it as a viable option.
How many mediators does it take to re-hang a picture? The answer: We don’t re-hang it, we re-frame it. What’s the lesson here – besides the fact that mediator jokes aren’t as fun as lawyer jokes? Mediators do not solve problems; they provide the parties involved with the means to create their own solutions. When parties are allowed to reach their own resolution, it is far more likely that they will comply with the terms of the agreement. To give this the best possible chance of happening, mediators need to wear a number of hats. Let’s take a look at six of the most important things that mediators do. And, no more jokes, I promise.