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
