How can you overcome common mediation challenges?

Preparing the parties is essential. They need to understand their role and your role as a mediator. The parties are the ones making all the decisions, and the mediator is there to facilitate the communication. That is often a misunderstood point so it is worth spending time answering questions about it. Setting guidelines at the start is also critical because the mediator may need to anchor back to those agreements, such as length of the session, allowing each party to speak, and much more. At the onset, the mediator must confirm that each party is a decision maker AND that each party wants to proceed. It is also helpful to inform the parties that the process provides the opportunity for all to be heard and understood.

Here's a mediation pro-tip that many attorneys and parties overlook: carefully consider your opponent's objectives. When preparing for mediation, most people think about what they will offer and what their "bottom line" will be. But of course, none of that matters unless you can get the other side to agree. Taking the time to analyze what may be motivating your opponent can be an extremely helpful exercise. Understanding what the other side really needs to obtain from a settlement can help you tailor your expectations and your proposals in ways that are more likely to resolve the dispute. Litigants are often surprised when they learn their opponents' perspective on the dispute, even in cases where the litigation has dragged on for years.

Clients should be prepared for mediation. This includes preparing the client to hear something they do not want to hear, or do not wish to acknowledge. Discussing with the client the purpose of the mediation, their role in the mediation, and the limits of their ability to control the outcome if the case proceeds to trial can help clients understand the mediation process, the risks and costs of proceeding past mediation, and assist clients in making the best decision at mediation.

I agree, it is also helpful to ensure that the parties disclose the identities of any non-participating individuals or entities that have decision making authority. There is nothing more frustrating than getting close to a deal and the real decision makers were not at all involved during the process.

Selection of the best counsel to attend mediation is critical. Bombastic counsel, who might be very effective at trial, may not have the right personality and temperament conducive to a reasonable negotiation. If the chosen counsel is at odds with their own client, the chances of success are reduced. Who appears at a mediation sends a message to the other side about how serious and committed they are to the process and ultimate resolution.

From my experience, parties are more open to resolving the conflict once they trust the Mediator and the conciliatory process. An air of neutrality and fairness to both parties is essential to building trust and achieving a smooth mediation.

Parties will be very upset with the mediation process if they are excluded (i.e., mediator talks only with lawyers). If the mediator wants to gain trust, and buy-in to the process, everyone must be heard. Once the mediator communicates real interest in what each party has to say through soliciting their view and probing what is behind their feelings, the mediator says to the party: You matter. This is a key to building trust.

The linchpin in any conflict resolution meeting is the Mediator. You should have already started to build trust from individual discussions but where the magic happens is in the joint meeting. Your facilitation of that meeting will make or break a good mediation. All the skills outlined above are a given but crucial to a successful meeting is your demonstration of Impartiality and that means no display of bias either side. The trust and mutual respect needs to be maintained throughout

Angry spouses do abuse the system to drag out the divorce. Hurt people hurt people. They know they won’t win, but they don’t want you to leave them so “easily”. Perhaps they feel like a victim. If you have hurt your spouse in any way (intentionally or unintentionally), you cannot expect them to respond to you in the way that you would like. I am not even talking about domestic violence. In my opinion, any case with DV CANNOT be mediated. Going to counseling can help you communicate in a way such that no further damage is done. It is hardcore prep work for this upcoming endeavor.

Independence, impartiality and neutrality are core principles at the heart of mediation, and essential to building trust between mediator and each party.

Asking the parties what they seek, and why, is helpful in unmasking unrealistic expectations of the judicial system. Even in a purely commercial case, there are emotions that run deep and may impact a party's willingness to settle. Furthermore, giving the parties an opportunity to share this information helps to allow emotions to fall away as parties realize they are being heard. Dismissing a spouse or an individual, while keeping the corporate defendant, will often pave the way toward settlement. Once the emotional level is reduced, the parties can deal with more practical issues in resolution.

Managing the emotions of each party is one of the more challenging roles for the mediator and also very important. The mediator must stay neutral for the parties and for their issues. Parties may want and need to express emotions, even when initially, they stated otherwise. There are so many times when parties introduce themselves and indicate that their issues are all business, and nothing personal. Then, when they start sharing, the emotions are revealed. It is often helpful for each party to see those emotions. After all, we are all humans and those emotions will reveal priorities and underlying issues. There are times when a break is helpful. Sometimes, a pause of minutes is enough, and other times, a pause to "sleep on it" is needed.

If parties show up for mediation in an angry mood, with daggers out at the other side, it will be difficult to get them to think rationally and be reasonable about ideas for resolution. So the anger needs to be removed, or at least dissipated. So, if a party needs to vent, let them. This is the equivalent of letting them have their day in court - while avoiding the risk of trial. And, the other side should listen since if they don't they will likely have to at trial.

Mediation can be a beneficial process for clients even if a resolution is not reached. High conflict situations can be handled by instructing clients make short "I" statements during group meetings, and then get into the details and emotions during the 1-on-1 sessions. This gives a party the space to express their emotions without an opposing attorney or party reacting to their statements. A mediator can ensure that all parties involved feel empowered to tell their story and be heard, even if a resolution was not reached.

Everyone is carrying some form of emotion in the session. Anxiety, anger, stress, fear, confidence...It can sometimes be a simmering pot of tension that can usurp the meetings progress at times. A good mediator will recognise the various emotions and adapt the session accordingly, recognising different actions need to be brought into play to offset whatever emotion is dominant at the time. I find diffusing emotion is best done by bringing people back to the ground rules set at the onset. Anger is the most difficult as that can, if gone unchecked escalate quickly. Time outs are good to fallback and regroup but need to be reinforced with positive actions of how the meeting needs to stay focused on the end gain...Agreement

A mediation may be the first time that the parties have met, or the first time they have seen each other since the dispute began. To achieve mediation success, all participants must exercise mutual civility. Parties often follow the lead of their counsel in terms of their persona. Thus, counsel should treat each other, the parties and the mediator with civility and respect - this will enhance the likelihood of arriving at a favorable resolution. Mutual respect for what each side has to say and their explanation for it facilitates a catharsis that can empower each side to get to the heart of the dispute and ultimately be amenable to a resolution. Allowing everyone to be heard and listening to them is critical to a successful mediation.

If you ever get to the impasse stage you need to try and Square the circle they are going in. Usually money is the biggest impasse issue. Park it. Focus on some of the small wins they have achieved- just being there and openly discussing their issue/s is a start towards an outcome. Find the cause of the impasse. I would have a further 121 discussion with each to ascertain what they feel is the blocker, what other things can they consider to reach an amicable solution. Revisit each priority list of wants, can 4 items move to 3 etc. But ultimately its important not to force it. They agreed to try & mediate an outcome. If both are so entrenched, they may reflect on that and want to try again, now they are comfortable with the process

Mediations are used to break an impasse between the parties to help them resolve their dispute. Sometimes a mediation can stall because of an internal conflict amongst the party's representatives that compromises one party's ability to negotiate. Put another way: "too many cooks in the kitchen" can spoil the process and frustrate the goal of resolution. In those instances, it may be advisable to have each side choose one representative to negotiate on behalf of the party so that the mediation does not devolve into an internal mediation within one party, rather than one between the parties. Creativity and "out of the box" thinking are critical to keep mediations on track and move the parties towards a resolution they can both live with.

Em se tratando de impasses que impe?am um acordo favorável para ambas as partes pode-se prorrogar por um tempo de dez minutos a media??o; após o tempo concedido, se ainda n?o houver um aceite das partes num acordo, deve-se sugerir uma segunda sess?o para dirimir sobre o assunto discutido.

Attorneys should remember that, if a case settles, mediation might be the only time that their client gets to plead their case to someone in authority. This is important because catharsis is a huge factor in getting a case settled. Plaintiffs and Defendants build emotion related to their case. And, the opportunity to convey that emotion to a third-party is important. Obviously, the mediator will not render a decision. But, the mediator can listen to the client and convey an appreciation of the circumstances and their perspective. Sometimes, attorneys just want to get down to business of swapping offers. But, one way to help ensure settlement is to allow the clients to have their say with the mediator.

Not every issue has to be solved in the mediation process. Simply because the mediator can help address communication and bring a fresh perspective to the conflict can help reach agreement on related or tangental aspects of the case that can narrow the dispute. And if you can get to the real core issues, then it is easier to address those with further mediation, or at least a much simpler and narrow trial.

Challenges are two fold voluntary participation from the Parties and Neutrality from the mediator Volunteering for mediation is a critical factor for successful mediation process and could be addressed prior to commencement of the mediation. Neutrality of the mediator is a consistent and ongoing challenge through out the entire mediation process and needs a consistent awareness from the mediator