Reference to the guiding principles of the process is appropriate at this stage, as well as ensuring that the parties are comfortable…
As with negotiation, the mediation process follows a basic framework. The framework that a mediator uses will be determined by the principles that guide through.
At Riverdale Mediation, these are our guiding principles: we see to provide a safe, fair, confidential, balanced, neutral, informed and voluntary process of self-determination that does no harm.
Each of these principles is important and sometimes they conflict with one another. It is therefore essential to have a solid understanding of the purpose of each principle, and a vision of how these principles will play out in any given situation. When confronted with a new challenge, good mediators will return to the principles that guide them for the solution.
The following series are excerpts from one of our training manuals for new mediators.
PART 5 – STARTING THE MEDIATION
There are several distinct aspects of an early phase of a mediation session. They include:
(a) Introduction: reviewing the purpose of mediation, the terms of the agreement, the time that the parties have available, the role and purpose and rules of caucusing, the limits on confidentiality, the issues that the parties wish to discuss, and an overview of how the meeting will progress. Reference to the guiding principles of the process is appropriate at this stage, as well as ensuring that the parties are comfortable. In some cases, it will be appropriate for the mediator to re-screen the parties before each session, meaning to check in privately and confidentially with each before the mediation to ensure that the assessment of suitability and process design remains appropriate.
(b) Inventory of issues: it is wise to ask the parties to inventory all possible issues at the start of the mediation. This reduces the risk of a party putting a new issue on the table at the 9th hour.
(c) Selecting the order: if there are urgent matters that need to be addressed, these should be dealt with first. Accordingly, you should briefly canvass each issue and ask the parties whether there is any urgency.
(d) Determining whether the parties wish to deal with issues one at a time or all together. Mediation clients can be justifiably nervous if they feel that they are making concessions on important issues before they have gained any concessions themselves. Anticipate this reasonable anxiety and discuss it with them.
(e) Assess whether there are any issues that either party needs to have legal or other advice on before proceeding further. It is the mediator’s responsibility to understand the circumstances in which a party may be prejudiced by proceeding with mediation—eg/ an expiring limitation period; negotiating parenting schedules without understand the implications for child and spousal support—and mediators should not allow parties to suffer harm unknowingly.
(f) Allow parties the freedom to talk, at their pace, and in their way, without interruption unless you determine bullying, coercion or abuse. Be comfortable with the parties’ own tolerance of conflict, and emotionality. Your role at this stage is to ask open ended questions, assist the parties in identifying their interests and understanding each other’s concerns. You will use this phase of the process to model respectful listening, and to emphasize that to listen and understand is not the same as agreement. Use this phase of the process to encourage the parties to feel safe enough to make the shift from blame, judgement and taking positions to exploring ways to problem-solve together.
(g) Assist the parties in arriving at a clear understanding of the real issues they need to resolve, and in framing them in a way that is forward-thinking and constructively problem-solving.