Thomas Resolutions is committed to neutrality and the facilitation of a resolution that is mutually acceptable to the parties in conflict or dispute. In that regard Thomas Resolutions’ mediators will ensure that there is “fairness” in the mediation process, and that the parties to the conflict at all times act with courtesy and respect to all mediation participants. Thomas Resolutions requires “strict” order and complete respect for the process from all participants during its mediations. We consider integrity of the process paramount to the success of any mediation effort.
Mediation is an informal, voluntary process wherein an impartial person trained in facilitation and negotiation techniques assist the parties to reach a mutually acceptable resolution. The mediator is not a judge, but he or she may express an opinion if it will help the settlement process. Mediation is an alternative which allows parties to express their needs openly, without being frightened, and to understand their opponent’s needs and the possibility of compromise without denying their own self-interest. It legitimizes opposition without showing bias. For this reason mediation is preferable to adversarial means of conflict resolution and it can be used in an effort to settle almost any type of dispute. Mediation is often called a “win-win” process, to contrast it to legal action in which one party must lose. While the law is more “black and white,” mediation recognizes the legitimacy of both parties’ self interests and seeks ways to reconcile them. What distinguishes mediation from other forms of dispute resolution, principally arbitration and litigation is that the mediator does not impose a settlement rather he or she works with the parties to establish their own solution. Mediated solutions often include relief not available in arbitration or litigation and they may be creative and flexible.
The actual process varies from case to case depending on the parties’ needs and the mediator’s style. Mediation as a process is non-binding but it includes facilitating a settlement that the parties agree to which is binding and enforceable in a court of law. The process includes one or more meetings between the parties to the dispute (and their representatives if desired) at a neutral location, in a comfortable and private setting. The emphasis is on developing a solution satisfactory to all parties. At any time during the mediation process any one of the parties to the dispute may decide not to participate any further for any reason. At that time the mediation will cease by order of the mediator. If the parties cannot negotiate an acceptable settlement, they may still benefit from the process by having narrowed the issues to be arbitrated, litigated or otherwise resolved.
The mediator does not practice law or therapy in mediation but he or she may help the parties reach a settlement by providing them with legal information or insight into the issue. While information about the law may help the parties reach a decision, the terms of the agreement are left entirely to them. A mediators’ greatest accomplishment in resolving disputes occurs when the parties share an interest in reaching an agreement to avoid arbitration or litigation.
Another critical element to successful mediation is ensuring that the appropriate parties, those having a substantial role in the dispute or witnesses to the dispute, participate in the mediation process along with the person (s) having the authority to enter into and sign an agreement during the mediation. Such measures buttress the “confidentiality” feature of the mediation process. With respect to confidentiality akin to the lawyer-client privilege there is a mediator-client privilege whereby a party is allowed to meet with the mediator to discuss various issues under confidentiality prior to the commencement of mediation.
Usually the parties meet to discuss their issues in person. The mediator helps the discussion to remain focused and productive. The mediator may hold private caucuses with each party separately and will carry messages, clarifications, questions, proposals, and offers, back and forth between the parties. A caucus may be called at any time during the mediation by the mediator or one of the parties. A caucus is a private meeting between the mediator and one of the parties to the dispute who requests to speak privately with the mediator to discuss, under confidentiality, whatever the party wishes to discuss. Usually a caucus is used to query whether or not a particular question is appropriate to ask one of the parties during the mediation or to recommend an offer to resolve the dispute. The mediator uses the private caucus and other techniques to facilitate the negotiation of a settlement.
The parties who are intrinsically involved in the dispute or conflict should participate in the mediation process. Witnesses may be called to provide testimony. Each side may have legal representation if they choose to do so or they may have a relative or friend to accompany them as a basis for support but not necessarily participate in the process. In an employment matter it is imperative to have a company official present throughout the mediation process who has the authority to make immediate decisions and the capacity to enter into a written agreement on behalf of the company.
Conflict exists everywhere in society and, to date, there are no absolute guaranteed techniques to avoid conflict, coercion or manipulation in the workplace or elsewhere. However, Thomas Resolutions will help you implement proactive measures to minimize the occurrence of conflict, help you resolve disputes, and teach you strategies to better manage conflict in your organization.