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Role of a Mediator in Legal Profession

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Mediators should assimilate and demonstrate the skills necessary to facilitate effective communication between disputing parties so that they can help others develop a mutually acceptable solution. Effective mediators will have excellent communication and interpersonal skills. This includes the ability to be objective and not prejudge others. Mediators should exhibit empathy, which is the conscious awareness and consideration of the needs of others, and be able to neutrally present this awareness. This demonstrates mediators' sensitivity to others. Mediators should avoid the use of sympathy which would indicate the sharing of feelings of one party, especially in front of both parties.

Strong communication skills in speaking, hastening, and clarifying issues are critical elements of effective communication skills in mediation. This equates to verbal and nonverbal acceptance of each party, along with support and encouragement to the disputants. Mediators should exhibit a desire to understand the conflict instead of hurrying to resolve the matter. They listen by not talking, asking open-ended questions, concentrating, maintaining eye contact, clarifying statements, and not jumping to conclusions.


An ability to deal with people and engender trust and respect through appropriate demeanor assists with effective communication skills. Mediators should remember that communication does not only consist of what a person says, but it also consists of what a disputant does not say and his or her body language-what mediators say and communicate through their body language is also important.

Mediators should be able to manage conflict and not shy away from it. In order to facilitate dispute resolution, mediators should be inventive problem solvers, persuasive, and employ distraction techniques when participants become emotional or stray too far from the dispute. Part of a mediator's appeal is the belief that people can solve their own problems. Mediators must supply structure and limits to the process, even with unruly disputants, and know when to terminate a mediation if the disputants refuse to comply.

A broad-based knowledge on substantive issues will help a mediator to address concerns of mediation participants. They should be knowledgeable enough to provide disputants information and alternative solutions and feed back about the interaction. The acquisition of negotiation and conflict resolution techniques are required. Mediators should constantly strive to improve their skills and increase their credentials.

No degree is required to become a mediator, but education or training in dispute resolution is desirable. Life experience is helpful along with experience in social work, management, communication, or other conflict resolution professions. The higher the education level and training of mediators, the more knowledgeable they will be. At present, there is no recognizable career path for mediators.

What Mediators Do
 
  • Mediators assist disputing parties to resolve their conflicts based on their own agreements, instead of by order of a judge or jury verdict. All parties in a dispute participate to reach a decision. Mediators merely facilitate their communications to reach this decision.
  • Mediators hear all concerns of parties to a particular dispute and develop creative suggestions to solving disputes, when money is not enough. This is done through a confidential process. Mediation discussions are privileged from disclosure unless a suit is initiated against a mediator or a court order requires otherwise. Of course, if the information could have been acquired in another way, it will not be subject to the privilege.
  • Mediators control the flow of information and encourage effective communication by discouraging blaming and defensive or other unproductive behavior, and paraphrasing statements of parties to ensure that they hear each other and respond appropriately. Mediation is a structured process. There are five typical stages in a mediation that may flow chronologically or overlap each other to some extent.


STAGE I

Mediation Stage I contains the mediators soliloquy of introductory comments and explanations of the process, along with ground rules. First, mediators will welcome the participants and congratulate them and encourage them about their decision to engage in the process. They will describe the disputants' purpose and their own role. The parties will be told about confidentiality and reminded that their participation is voluntary and they can terminate the mediation at any time. The parties are also reminded that litigation generally results in a win/lose resolution by a stranger and compromise involves a lose/lose situation. However, in mediation, the parties may fashion a resolution that is a win/win situation for all parties involved. The five-stage process described here is explained to the parties.

Mediators will ask if they can call the parties by their first names. The par ties must be treated equitably during this phase and all mediation phases. In the spirit of equitable treatment, if one disputant prefers to be addressed by a surname, then all disputants must be addressed by surnames. When ground rules are discussed, mediators should ask each party individually if they agree to each ground rule. These rules include not speaking unless it is one's turn, and addressing all comments to the mediator instead of the other party, as well as others.

STAGE II

In Stage II problem determination occurs when each party presents his or her side of the dispute. Mediators may ask clarification questions and paraphrase the statements made. During this stage, the parties commonly forget the ground rules and interrupt. Mediators must then establish the limits and structure for the discussion by reminding both parties of the ground rules, instead of just the infringing party: It is important that mediators not single out one party for reprimand. Parties must be encouraged and supported when they listen and be reminded that they will receive equal treatment and time to present the facts. Both parties should be congratulated for their progress and participation throughout this process. Mediators should then state areas of similarity between the disputants and set priorities for the resolution of the conflict along with stating the intention to resolve the matter. Mediators may ask clarifying questions as long as they are not asked in a confrontational manner.

STAGE III

During Stage III, the parties generate and evaluate alternative resolutions for each other. Without a mediator’s help the process would usually stop at this point. After asking each party what they want to resolve the conflict, mediators state similarities in the proposals. Sometimes, at this stage, mediators will need to separate the parties in order to help them ascertain the strengths and weaknesses of their proposals in what is known as "reality testing."

STAGE IV

If a resolution is agreed upon, mediators enter Stage IV of the mediation process that requires them to acquire specifics of the agreement. Mediators should establish what, who, when, where, and how. This generally means that mediators should determine what each party wall do, when they will do it, in what manner, and where, in a reciprocal manner. For example, if one party agrees to pay the other $1,000 and the other party agrees to accept the money and dismiss the suit, then a mediator should discuss the form of payment and when payments will be made, where they will be sent and when, and how the other party will dismiss the litigation.

STAGE V

During Stage V, the mediator drafts a simple agreement that all parties sign. This agreement contains reciprocal obligations upon each party with the specifics for performance. The agreement should be simple and understand able. It should also be drafted in the positive in that each party is stated "to agree to" some act. It should state that all matters related to the dispute are resolved and contain any necessary future provisions.

Overall, mediators listen, ask questions, and probe for solutions during this process. They aid parties in structuring agreements. The parties are responsible for their agreement and a mediator may not force parties to settle or make decisions for the parties. It is critical that mediators make disputants aware of this to ensure that they will bear the responsibility for the agreements, and increases the likelihood that the disputants will comply with their agreements after they leave the mediation.

Mediators may terminate the session at any time, if a disputant is unwilling or unable to make an effort to meaningfully participate. If a party is irrational, intoxicated, or exhibits impaired judgment, mediation should be terminated. If domestic abuse or an excessive imbalance of power is present, mediators may need to terminate a session. Mediators do not offer legal advice and must report revelations of abuse and neglect.

What the Job Is Really Like

A typical day for a busy mediator involves scheduling mediations and reviewing mediation statements and other documents, identifying and attending career enhancement opportunities through training and curriculum, and volunteering time for organizations in dispute resolution. When a day is booked with one or generally no more than two paid mediations, the mediator spends his or her day in the dispute resolution process previously described.

Getting In and Moving Up

Mediators do not need formal training but may be required to receive certifications or accreditations in the districts in which they work. Many courts are now requiring parties to try mediation before trial. With the proper court approval, if required, you can become a mediator Many mediators have back grounds in law, psychology, social work, counseling, religion, or finance. Of all areas of mediation specialties, family mediators must acquire the highest level of training in order to handle emotional and sometimes volatile disputes between family members. Public mediators are carefully screened, but any private mediator can hang out a shingle and profess to be a mediator. Prospective mediators should obtain basic foundational training, observe sessions, then be observed and conduct co-mediations before attempting to mediate alone.

A Few Key Points to Remember
 
  • Mediators are active listeners who are soft on people and hard on problems, acquire ideas, facts, and feelings with reciprocal empathy, and encourage and support participants to solve their own problems.
  • Mediators do not offer legal advice.
  • Mediators employ conflict resolution and negotiation techniques along with their mediation training.
  • The future employment opportunities are high for this new profession.



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