Contact: Ian Szlazak
Resolution House Inc.
71 Rideau Terrace
Ottawa, Ontario, Canada K1M 2A2
Tel: 613 746-9679
Fax: 613 746-6637
Guidance: Preparing Yourself for Mediation
There are many definitions of the mediation process. Perhaps one of the most accurate, certainly the simplest, is that it is "assisted negotiations". Recognizing that this definition does not provide new participants with much guidance on what to expect and how to prepare for mediation, please consider the following guiding principles, written both for parties and their representatives. We think that the more attention you pay to these principles, the greater the likelihood that your dispute will be resolved in a satisfying manner.
- Ensure that both party and representative are present, fully informed and have authority to resolve the dispute. Where logistics are a problem, with the consent in advance of the other party, you can use video-conferencing or tele-conferencing, although we believe that they are not as effective as being present.
- Expect the unexpected. Be willing to accept that new information and/or developments may arise. See these as opportunities to reduce or eliminate problems.
- Listen, listen, listen!! Listening is to mediation what location is to real estate. And focus on the problem, not on the people associated with it.
- Watch those tactics. Remember that mediation is not well-served by many tactics borrowed from litigation. Consider how you would react to what you are planning to do. Is it potentially offensive? Is it necessary? Is it in your real interests?
- Be prepared for mediation. Spend energy and time thinking through and discussing your approach. Consider options, alternatives and "what ifs" in advance.
- Be imaginative. The solutions at mediation often are richer and more varied than that which an adjudicator can provide. Think outside of the box and turn constraints into opportunities. Try to look at the issues through the eyes of the opposite party.
- Watch yourself. Be aware of how you are perceived and how your presentation of a position invites or defies a productive dialogue. Build this into your pre-mediation preparation.
- Mediation briefs or materials should be complete, persuasive and delivered sufficiently in advance of the mediation so as to allow all concerned a reasonable opportunity to digest them. Of course, know your own materials very well. Be ready to clarify and explain.
- Do not underestimate the ability of the other party, often the instructing individual, to comprehend and play a pivotal role at mediation. Mediation is best thought of as a team endeavour, not as a spectator sport.
- Think and rethink your strategic choices in negotiation, reviewing what mediation procedures you prefer, who will do or say what, what your "bottom line" is and how you determine whether you have achieved a good result or not. Use reasonable comparators and evaluative criteria, based on professional advice.
To make the most of any dispute resolution process you must be well-prepared to explain where you are "coming from" as well as be willing to deal with issues and questions raised by someone else. If you have time, background reading in the dispute resolution field may be helpful. Negotiating experience can be, but is not always helpful — it depends on the quality of your experience.
Understand the elements of the process you are about to undertake. For example, giving evidence under oath at an arbitration is a far cry from being a negotiator/participant at a mediation. Parties at arbitration must be prepared to recount what they know, while participants at mediation must engage in far more listening and interacting with the other party(ies), possibly negotiating issues to resolution. At arbitration, someone else (the arbitrator), will decide the outcome of your case, and that outcome may not be to your liking. At mediation, the mediator will not impose a decision upon you, but you may have to make tough decisions relatively quickly in order to resolve the dispute. You may not get everything you want. Your pre-mediation preparation with your representative may make all the difference.
In other dispute resolution processes, still other qualities and efforts may be called upon, again putting the onus on you to thoroughly prepare for what you will be doing. A good service provider can assist the parties in understanding the key features of each process and their advantages/disadvantages.
In all cases and situations, it is important to realize that you must share and understand information. Good communication is imperative:
Communication does not end with your listening skills. It also involves thinking (the brain) and feelings/intuition (the heart). If you fully engage in mediation, you may be said to be the most "organic" of participants, for you are utilizing as many senses as possible - and that may include smelling a rat!! Remember, receiving information that you do not agree with is not capitulation to the position of someone else. In fact, being a receptive listener gives you a good basis for expecting the same in return. This form of cooperative behaviour improves the quality of the overall dialogue, all the while respecting that there are real differences of viewpoint. And it gives you one of the best opportunities you will get to do an objective, comparative risk assessment of your position and possible outcomes, at mediation and elsewhere.
You should recognize that at mediation, as with any negotiation, you may arrive at "a" resolution, not "the" resolution; that is, there usually are a range of realistic outcomes, and with several issues, these outcomes may affect or alter each other. An image that assists in seeing the possibilities is "The Zone of Agreement", an elliptical shape with the parties at the right and left axes. The outcome(s) they negotiate are not a single fixed point within the zone; rather, depending on how the negotiation proceeds, outcomes are variable. All of them may be acceptable. The Resolution House approach is to carefully watch how the gap between the position of the parties evolves — what we call "gap analysis". It often is more important than the numerical representations of the positions themselves.
The way to a satisfactory outcome is to determine beforehand what range of outcomes would be acceptable to you. The range(s) that you create (and keep to yourself) gives your negotiations a flexibility which often is necessary for a successful resolution to be obtained. If you accept that it is rare that the "winner takes all", you will appreciate that a structured negotiation forum like mediation offers you more, not less, than any other way of resolving your dispute.
Q and A
There are many sources of information devoted to answering questions that regularly arise about things like time limits and procedural requirements. Accordingly, such questions are not addressed here. In the sections above on this page, you will find general guidance information. Over the years, a number of more difficult questions have arisen, the answers to which may be helpful to prospective users of Resolution House services. Here are some of them:
Q: What happens if the parties at a mediation bargain long and hard but simply are unable to consummate a mutually-satisfactory agreement? Cannot something be done to force the other side to come to reason?
A: While coercion is not something that Ian Szlazak will employ, there can be frank private discussions about the specific situation and what needs to be done to get to an agreement.The will to come to resolution must be present on the part of the parties and their representatives. It is for an adjudicator/judge, not a mediator, to impose a resolution on parties.
When it is apparent that discussions aimed at resolving the dispute are not moving towards settlement, mindful of what is stated above, Ian Szlazak employs several techniques designed to focus on the key elements of the impasse, including intensive caucusing, taking readings of the willingness of the parties to make further proposals through safe means, such as mediator-owned proposals or "balloons" and a form of "double-blind", through which it is possible for the mediator to assess the actual gap between the parties and determine whether further discussions between the parties are likely to produce a settlement. These techniques and others may be used in conjunction with one another. Proposed actions which involve an initiative on the part of the mediator are explained beforehand to the parties and their representatives and must be agreed to.
Q: What if the parties are so alienated from each other that they will not even agree to be in the same room, let alone speak directly to each other?
A: One of the benefits of having done hundreds of mediations, with thousands of participants and representatives, is that Ian Szlazak has been able to build a repertoire of tools to handle novel or extremely difficult situations.
A mediator can eliminate negative personal contact by acting as a "go-between" between parties, and regularly does this in the course of normal caucusing. In situations that are particularly difficult, sometimes it is possible to use physical arrangements and/or technology to facilitate a dialogue that feels safer than otherwise would be the case. While there can be some disadvantages with alternatives to a face-to-face discussion, if the alternatives mean that a mediation will occur versus none at all taking place, it usually will be worth everyone's time and effort to give the alternative a chance to work. To illustrate, in a very sensitive sexual-abuse case, an office divider was successfully employed, which ensured that there would be no visual contact between the parties but which allowed their voices to be heard directly, resulting in a more powerful dialogue than one conveyed through the mediator.
In all cases, mediation is meant to be a process where people feel as safe and comfortable as reasonably possible, particularly where there is a history of personal revulsion or where there is a significant power imbalance between the parties. Special concerns should be drawn to the attention of the mediator prior to the day of the mediation in order to allow for appropriate discussions and arrangements to be made.
Q: What if a party, possibly unrepresented, cannot or will not provide any information related to the rationale for their position, but still wants to attend the mediation?
A: There are principles of fairness that operate at mediation which require compliance on the part of all concerned if the process is to produce any positive results. One such principle is that all parties be treated equally by the mediator. Another is that, within reason, all parties have an opportunity to understand as well as possible where the other parties "are coming from". The most efficient way for this to be done is for briefs to be exchanged prior to the mediation. These briefs should outline the position of a party as well as indicate the rationale or reasons for that position. It is better to state the obvious that to not state something that results in a wrong impression or worse. It often is wise to include significant documents which support one's position in the brief. Briefs sometimes will state in explicit, often numerical, terms what a party wants; some people think it is best to say what their objectives are right from the outset, in their brief. Others will leave the evolution of their position to the mediation itself and will not divulge a numerical position at the outset. These are differences of style and bargaining strategy.
However, most people will agree that once a decision has been made to come together at mediation, in order for it to be a meaningful experience, there will have to be adequate information flow in order that the parties can constructively assess each other's interests and formulate proposals for each other's consideration. In many litigious cases, this will mean that mediation ought not to take place until document production and the discovery process have taken place. In cases involving technical matters or assessments of professional negligence, it may be beneficial to go even further and share expert reports prior to mediation.
A key element of a successful mediation is for all parties to be as prepared as possible, which includes having a good understanding of the viewpoint of the other parties, which in turn enriches private deliberations aimed at reconciling as many interests as possible. If information disclosure is viewed solely as a tactical issue, such an approach can severely impair the ability of the parties to make any real progress at the mediation
Q: Is it necessary to have a background or broad knowledge in negotiations, mediation or related areas in order to participate in mediation?
A: The short answer is "no", but it can be very useful if participants understand the context in which the mediation arises and are prepared to respond in the appropriate manner to what may occur at the mediation. Some people make the mistake of thinking, for example, that if they have previous experience in bargaining in a completely different situation, that their experience alone will serve them well in the mediation of a litigious dispute. In such mediations, there usually will be a greater emphasis on listening, listening for more than simply information on the substantive aspects of the case. More emphasis is placed on listening for and trying to understand a more "mysterious" aspect of the dispute- the emotions that are often driving it forward. Litigation usually upsets people and thus emotions are in play with reference to process as well as substantive issues. Emotions have everything to do with the human and relationship aspects of the dispute. In this sense, having some knowledge of psychology may be as useful as reading a book about negotiation strategy "Common sense" and an ability to stand back and think objectively when assessing the situation will be very useful in getting to a resolution that everyone can live with, even if begrudgingly.
A party's assessment of who it wants to use as a representative in a litigious matter should include not only who will be the best advocate in a courtroom, but who has the requisite skills as a negotiator. Just as there are considerable variations in the ability of courtroom counsel, so too are there great variations with reference to representation at mediation. When one considers how many cases actually proceed to trial as a percentage of cases brought, the importance of due diligence in choosing representation for your mediation should be apparent.
Q: Isn't mediation just an added step in the litigation process, which ends up costing me more money as a client?
A: As more and more people have become familiar with mediation, this concern has diminished, particularly when people consider the impressive resolution rates of mediation, its comparatively low cost, its relative efficiency in terms of time and effort spent and the fact that it is an inclusive process, allowing parties to directly participate in finding resolution, which produces not only more durable resolutions, but more satisfying ones. Ian Szlazak has addressed the cost issue by setting his fees at competitive rates, which take into account access to justice concerns as well as the skill set and experience he brings to the table. Even in those cases where a full settlement has not been achieved, mediation is often the catalyst for further negotiations, usually resulting in the dispute being resolved without need for a trial.
In comparison with the overall cost of litigation in those cases which do go to trial, we have noted that the per-party cost of mediation is relatively inconsequential in all but the smallest cases in the Superior Court of Ontario, and that this usually is because the monetary magnitude of the case is far below the jurisdiction of the Court, even for what are known as simplified actions.
The most constructive way to address concerns about the cost of mediation is to carefully choose a third-party who has a reputation for effectiveness and efficiency. Combined with thorough preparation on the part of parties and their representatives, these preparatory steps provide the highest probability that the process will not be just an added cost, but the end of the dispute!
The overall cost of litigation is a concern in many jurisdictions. Discoveries alone can represent a significant cost for the average party/litigant. It is unlikely that all cost-of-justice issues can or will be resolved to the satisfaction of parties. This fact forces litigants to think carefully about their options and what each has to offer. When assessed in this context, mediation has proven that it deserves to be a permanent feature of the litigation process. In fact, some far-sighted party representatives are turning to mediation before any litigation has been commenced, seeing it as the process of choice to resolve their dispute. Particularly in cases where the disclosure of information is not an issue, such as many employment-related cases, this is the case. This approach has the added benefit of not exacerbating the situation, which often occurs when allegations are framed in the legal language of pleadings.
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