Appreciating Issues in Mediation

Mediation normally begins with getting the parties involved to give a complete narrative description of the dispute by each party in turn.  Most often the party who initiated the hearing or filed the complaint starts to speak first.

This is the parties’ first opportunity to express their anger and frustrations  about their dispute, it also provides the mediator with his or her first exposure to the nature and history of the parties’ dispute. It is imperative that the mediator listens attentively and keeps interruptions to a minimum. If the mediator needs to ask questions make sure they are only for the purpose of clarification, such as “I don’t understand that” or “Could you please repeat that?” You want to really understand what has transpired between them, so be patient. There will be plenty of time for asking questions later.

When the first party has finished speaking, ask the other party immediately to respond with his or her own description of what happened only then will you understand how differently the disputants perceive their problem and have enough of a feel for the dispute to begin to identify the issues in a dispute and develop various ways to resolve the issues.

One of the most important tasks for a mediator is to identify the different issues in the disputes. In mediation an issue is

1.    any element of the dispute
2.    expressing each party’s interest(s)
3.    that is capable of being addressed effectively in the mediation process

A mediator must understand that every dispute is composed of a host of little disputes. By the time parties are compelled to go for mediation their dispute frequently has mushroomed into a complex confrontation on a variety of levels and over a multitude of issues. One of the major, perhaps the most important contribution a mediator can provide is a structure for the discussion of issues which allows the parties to perceive all the pieces of their disputes and to construct workable resolutions for each of the component disputes contained in their massive, overall confrontation.

The second important aspect is that issues in mediation are defined by the needs and interests of the parties and the mediation process seeks in each dispute to generate a formula for meeting sufficiently the needs of the parties to make settlement of the overall dispute mutually attractive and acceptable. Thus from the beginning of the consideration of the dispute, the perspective of mediation is prospective: thus in a dispute between neighbours over excessive volume of music, the issue in mediation is not whether the  volume is excessive if  the neighbour’s sleep has been disturbed. Rather the issues are the need of one to enjoy music and the need of the other for undisturbed sleep. Mediation of this dispute focuses on the ways of maximizing fulfillment of the needs of both at minimum cost to the needs of each other.

Finally, the definition of the “issue” reflects the limits of the mediation process. Only those elements of the dispute that can be addressed effectively in the mediation process itself are bona fide issues. For example, no mediation session can hope to eliminate deep-seated ethnic bigotry that may underlay a dispute between parties, but it can move to contain or limit the effects of that bigotry on the lives of disputants. Another example is by obtaining a commitment to end harassing phone calls or sending offensive text messages. In such a dispute, the attitude of an antagonist may be seen by a party as an element of the dispute that needs to be addressed but because it is not one that mediation realistically can hope to resolve, it is not an “issue” for the purpose of a mediation process.

The summary of all this is that mediators must first learn to shift their focus and eventually that of the parties from those events that got the disputants into their present problem to ways of adjusting present and future conduct to extricate them from their predicaments.

This means that mediator’s focus should not be on the history but on the future of the dispute.

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