The final step in the
mediation process is "closure".
The conclusion of every mediation hearing includes a few words from the
mediator acknowledging the efforts of the parties. Often emotions are high at the end of a
session, even euphoric. At other times the parties feel tired and hopeless. Regardless,
the mediator has responsibility to acknowledge the efforts of the parties and continue to
provide encouragement in resolving their dispute.
WHEN THE AGREEMENT IS REACHED
The mediator compliments the parties on their determination to work through
the situation. The parties are complimented for their willingness to seek mediation and
informed that if any problems develop they should contact the mediator.
IF NO AGREEMENT IS REACHED
The mediator thanks them for meeting and trying to resolve their dispute
through the mediation process. The parties are still complimented for their efforts even
though no agreement was reached. The mediator points out any positive aspects which were
developed during mediation, such as increased understanding between the parties.
A large number of settlements occur after not during mediation. This is
credited to a process commonly referred to as incubation. During the incubation process
the parties are thinking subconsciously about the points brought out during mediation and
in so doing come to the realization that there is a way to resolve their differences.
Sometimes the mediator is recalled to draft the agreement or the parties
agree informally or draw up their own agreement.
CHOOSING A MEDIATOR
In the last ten years mediation has become a growth industry and it seems at
times that everyone is practicing mediation. In 1988 Martindale-Hubbles' Directory of
Mediators had less then 200 pages of listings. Today there are over 950 pages.
Being an attorney is not a requirement of mediation and in many cases it is
prudent not to engage the services of an attorney/mediator. The reason is that procedures
of law do not apply in mediation. There are no rules of evidence and everything is
admissible. Many attorneys who mediate have difficulty separating the common sense rules
of mediation from legal procedures. That is not to say that attorneys do not make good
mediators. I know of several attorneys who are excellent mediators but they can
distinguish the difference between mediation and arbitration.
The mediator chosen should have been certified by an agency authorized by the
state. This certification identifies that the mediator has successfully completed the
required training hours to mediate. In addition, the mediator should be able to provide
references. Mediation is confidential and therefore it should not be expected that the
references be of previous parties. However, the mediator should belong to an association
or be a member of the state bar where references can be authenticated. Many state bar
associations have associate memberships for mediators, para-legals, court clerks, etc.
Many states, counties and professional associations provide a mediator referral service.
In addition Martindale-Hubble publishes a directory of mediators.
Most mediators whether they are attorneys or non-attorneys specialize in a
particular area. It is best to choose a mediator who is familiar with your business or
industry. Less time is spent educating the mediator in practices or procedures unique to
the dispute. Remember, the mediator make no decisions but is a neutral whose job is to
find common ground whereby the parties can find solutions and come to agreement.
I wish you well.