Working towards resolution of an issue in dispute is seldom achieved in a single sitting. Disputes generally take time to develop and equally, time is needed for complete resolution thereof. Mediation is a process – a walk towards resolution - it is not a 500m sprint. With mediation we are not seeking a winner for the podium but looking for long term realistic options that could ultimately provide a mutually beneficial outcome for all the parties involved in the process.
Preparing oneself prior to the mediation is always advisable particularly as this has the potential for ensuring that one is best positioned to experience the full benefits of mediation.
FIRST REQUIREMENT : UNDERSTANDING WHAT MEDIATION IS
As a starting point for preparation, parties need to do some research on mediation, they need to have an understanding on what mediation is, the role of the mediator and the parameters within mediation operates.
A party who is only seeking legal advice or clarity on the matter at hand and on how best to position themselves or their dispute, alternatively a party who is seeking someone to make a final decision on their matter will clearly end up frustrated by the process. Equally so, as mediation is resolution-orientated, the hostile party who merely seeks just another forum within which to continue the dispute will soon find much to their disappointment that the process has been terminated. In a nutshell what is needed is exploration as to what mediation offers and whether it is the right option for the parties.
Clearly with a court-mandated mediation, parties are compelled to attend the process. However a proper study on and understanding as to what mediation offers and the potential outcome of the process on long-term relationships, time and money may well still act as the catalyst for a successful mediation.
SECOND REQUIREMENT : UNDERSTANDING THE NATURE OF THE DISPUTE
Having assessed what mediation is and is not … a party then needs to spend some time determining from their own perspective the nature of the conflict and the specific issues implicit therein.
Having completed this assessment, a party then needs to try to assess what the nature of the conflict is all about from the other parties’ perspective and what are the potential issues for that party.
A list needs to be drawn up for those issues that both parties agree on and those issues that both parties disagree on.
Having spent time in gaining an overall understanding of the nature of the dispute a party should ideally then unpack the conflict - issue by issue - and determine whether any aspects of the conflict have potentially been exacerbated through misunderstanding, scandalmongering by third parties, falsehoods, fabrications or downright hurtful communication. A party needs to determine what the misunderstanding is, in what manner can/should this misunderstanding be rectified, whether supporting documentation would assist to clarify issues and what such supporting documentation would consist of, whether an apology or a retraction is required from anyone or to anyone and what would be the potential impact hereof if there was such apology or retraction.
Furthermore having now gained increased clarity on the make-up and features of the dispute, a party should ideally spend time in consideration of possible desired outcome from both parties’ perspective. A hierarchy of potential outcomes should ideally be drawn up with advantages and disadvantages and probable time and cost factors listed against each outcome.
THIRD REQUIREMENT : UNDERSTANDING NEGOTIATING STYLES & TRIGGER POINTS
The prospect of being in the same room with a person that one is in conflict with can be an overwhelmingly nerve-racking contemplation and exercise. This is a normal sentiment experienced by many. Realistically, there is very little one can do to exert control over another person’s attitude, bearing or communication style, what one does however have control over is oneself and how one will react to the other party. In order to prepare for face to face meetings it is always a good idea for a party to consider the other party’s communication and negotiation styles and to determine what aspects thereof create an uncomfortability or an intimidation or act as a trigger for negative outbursts or responses.
Having assessed this a party needs to plan on how they will react and handle themselves if this happens. Things that they may want to consider is asking for a short break in the mediation; pointing out the trigger-orientated actions to the mediator; requesting that the mediation be adjourned; communicating to the other side that they will no longer be responding to these attempts to cause them annoyance and that the other side might as well stop with such behaviour in doing this not only is the mediator now notified as to what one perceives as a trigger but the other party is also aware that the mediator will be watching out for such triggers.
It is a good idea to bear in mind that often that other party to the mediation is just as nervous about the mediation process and one needs to assess whether there are behaviours or things that one does that may act as a trigger for the other party that need to be avoided. Causing outbursts may generate short-lived moments of enjoyment for the party causing the outburst but if negative outbursts take place one needs to consider what the likelihood is of successful resolution of the dispute – how much longer will the dispute continue – what would the collateral financial and emotional damage amount to and what are the options and likely outcome of resolution in a different forum – would the conclusion of the dispute yield better result in a litigation forum or a forum which works towards a mutually beneficially outcome.
Without doubt for the majority of matters the advantages of mediation far outweigh any perceived disadvantage of the process – bearing in mind that there will always be a handful of matters that are not suited to mediation and need adjudication by a Court of Law – but on the whole the advantages of mediation are manifold and preparing for this process will go a long way towards assisting parties in obtaining the full benefits hereof.
For more information on Mediation and Preparing For a Mediation, please visit Tracey-Leigh Wessels’ website at www.traceyleighwessels.com