Mediation Process

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Mediation has several components, which include its goals, process, participants and outcomes. Critical to the first and last is the process. Unlike arbitration, mediation is a non-binding process that also differs from negotiation, in that the strict neutrality of the mediator is an absolute prerequisite for proper mediation. (Negotiators act on behalf of one party, often being one of the parties, rather than a designated representative.)

The mediation process has three participants: the two parties to the dispute, plus the mediator. By contrast, negotiation, in fact has two opposed interests, only one of which to whom a negotiator is beholden. Of course, like a mediator, a negotiator can attempt to act in the interests of the opposing side; but that consideration will, contrary to the requirements of the mediation process, always be secondary to the interests of the represented party. Examples of this include a police negotiator negotiating the release of hostages or home owner and home buyer negotiating a sale price with someone selling because of medical bills.

Mediation is a process of dispute resolution. It involves a trained third party apart from the two sides of the dispute. The third party works with both sides, mostly in an informal discussion and helps to resolve the dispute. The entire process is non-binding. This means, the proposed agreement of the mediator could be discarded by either party. The parties involved in mediation are allowed to have an attorney to represent them. If attorneys are present, they will act as advisors and not participate in the mediation. Many business disputes, business contracts, employment disputes and labor negotiations use mediation.

Mediation is mainly an informal process. However, the process is very well-defined. the mediation commences with the mediator's welcoming all parties and introducing herself/himself. The process is then outlined and the role of the mediator, both parties and any attorney present, is explained by the mediator. The introduction ends with the explanation of the ground rules.

Both parties are then asked to provide their statements. Individual viewpoints are looked at about what had happened. Although the stories may be emotional, the parties do not pose any questions to each other. For greater understanding, the mediator may ask more questions for both parties. The mediator may then speak separately with each party for proposing scenarios and trying out solutions. It may be a back and forth, give-and-take flow between the parties in trying to get them to make a commitment. Common points are selected by the mediator, who tries to get the two parties to reach and accept an agreement on some point as a prelude to reaching a final agreement.

It must be noted that if the goal of the discussions is to maximize one's advantage and benefit, rather than to simply end the dispute, through the use of an advocate for one's side, it will be advisable to appoint a negotiator who will explicitly be acting on one's behalf. In some instances, when mediation and negotiation have both failed, it may become necessary (where possible) to have the dispute adjudicated by an arbitrator-in which case, the abritrator's rulings, unlike the recommendations of a mediator or negotiator, are binding.

The process of mediation can be obstructed or facilitated by prolonged discussions: On the one hand, fatigue may set in for one or both parties, who will then want to "get it over with". On the other, frustration and resentment may mount, causing a hardening of attitudes and inflexibility. To the extent that a mediator is contemplating capitalizing on time as a mediating tool, great care should be taken in allowing mediation to become protracted.
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