Step 6 of the Dispute Resolution Services, Inc. (DRS) model of mediation is Finalizing the Agreement.
Assuming that you are able to arrive at a specific solution that resolves the disputed issues, there are basically three methods for finalizing the agreement.
First, you can finalize the terms of the agreement in a written contract form. Good agreements reflect the parties' mutual concerns, interests and promises and conditions. They are simple, specific, and leave no doubt as to what each party will perform. After the agreement has been reviewed, revised if necessary, and finalized, both parties sign the agreement.
Second, depending on the issues being resolved and the maturity and emotions of the parties, some agreements can be informal and open-ended, and merely summarized verbally. Verbal agreements in mediation depend on the good faith of the parties for follow-through, and are not otherwise enforceable.
Finally, the parties may schedule a later appointment to finalize the agreement. This is appropriate if one or both parties want the agreement to be reviewed by an attorney. In a divorce mediation, the parties would take the agreement to their attorneys for review and to finalize the paperwork for a judgment. The parties themselves are responsible for filing any papers with the court. However, there are specific terms that should be included in the mediation agreement in order for it to be enforceable in court. A competent mediator will ensure that the agreement contains both a waiver of confidentiality with regard to the agreement itself and a clear statement that the parties intend for the agreement to be enforceable - if that is what the parties desire.
If both parties are represented by attorneys at the mediation, the attorneys will most often draft the agreement at the mediation, and create any additional paperwork at a later time.
Showing posts with label mediating the litigated case. Show all posts
Showing posts with label mediating the litigated case. Show all posts
Step 4 - DRS Model - Conflict, Communiucation and Negotiations
Step 4 in the Dispute Resolution Services (DRS) model is Conflict, Communication, and Negotiations.
Most people think of this step as the guts of a mediation, and may not even realize that the other steps exist.
Mediators are trained to "surface the conflict". Some think of this as "getting to the bottom" of the dispute, uncovering the "real" dispute, or getting to the "heart" of the matter. The mediator's role, in the DRS model, is to encourage the open expression of the underlying fears, belief systems and feelings that surround and control the conflict.
Once the parties can acknowledge the feelings and fears underlying the conflict, the mediator can help to separate those feelings and fears from the issues at hand. The parties can then be empowered to work together towards a resolution that recognizes and encompasses both of their needs, feelings and personal sense of fairness, while reflecting the mutuality of the conflict, the resolution, and the mediation process. Touchy, feely, and one can almost hum a few bars of Kumbaya. Of course, we could all just pretend that feelings and fears don't exist, or, if they do exist, they don't really affect anything we say or do. Mediation provides a safe structure, and the excuse we need, to acknowledge and address feelings and fears.
Once the conflict is surfaced, the mediator encourages and fosters constructive communications. Mediation training is essentially communications skill training geared towards conflict resolution.
DRS has modeled its method of negotiation around four basic principles:
Most people think of this step as the guts of a mediation, and may not even realize that the other steps exist.
Mediators are trained to "surface the conflict". Some think of this as "getting to the bottom" of the dispute, uncovering the "real" dispute, or getting to the "heart" of the matter. The mediator's role, in the DRS model, is to encourage the open expression of the underlying fears, belief systems and feelings that surround and control the conflict.
Once the parties can acknowledge the feelings and fears underlying the conflict, the mediator can help to separate those feelings and fears from the issues at hand. The parties can then be empowered to work together towards a resolution that recognizes and encompasses both of their needs, feelings and personal sense of fairness, while reflecting the mutuality of the conflict, the resolution, and the mediation process. Touchy, feely, and one can almost hum a few bars of Kumbaya. Of course, we could all just pretend that feelings and fears don't exist, or, if they do exist, they don't really affect anything we say or do. Mediation provides a safe structure, and the excuse we need, to acknowledge and address feelings and fears.
Once the conflict is surfaced, the mediator encourages and fosters constructive communications. Mediation training is essentially communications skill training geared towards conflict resolution.
DRS has modeled its method of negotiation around four basic principles:
- Separating content issues from process issues.
- Focusing on the interdependence of the parties. The mediator looks for shared interests that may underline the positions the parties have taken.
- Empowering the parties to invent multiple options. Negotiations are the perfect time for creative thinking. The mediator must expand the view and broaden the picture of the disputants.
- Refining and testing the proposed options.
Step 3 - DRS Model - Setting the Agenda
Step 3 in the Dispute Resolution Services, Inc. (DRS) model of mediation is Setting the Agenda.
According to the DRS manual, the single most important function of the mediator is to set the agenda or help the disputants define the issues and determine their priorities. While the parties are the ones who actually define the issues, the mediator can assist in organizing the discussion.
It is often useful to put the agenda in writing and to share it with both parties. By agreeing to a common agenda of items and issues to be discussed, the parties have already shown that they are capable of reaching agreement on at least some issues - in this case, what should be discussed.
Depending on the complexity of the agenda, some items may be reserved for future discussion at other sessions of a mediation. As the mediation continues, the disputants may agree to add or subtract items from the agenda. This often occurs as the mediation progresses and it becomes apparent that some issues are either unimportant or no longer contested. At the same time, parties sometimes add an item to the agenda just after it appears that a full resolution can be reached.
There are many reasons that items may be added to the agenda. One of those reasons is that the disputants may not be ready to give up the conflict.
If additional mediation sessions are necessary, the disputants may be given homework to that the negotiations can proceed smoothly and all parties are prepared to discuss the items on the agenda. For example, one or both disputants may be asked to obtain estimates of fair market value, survey land, consult with a professional, or perform other tasks that will assist in resolving all items. This assists the parties to be actively engaged in the process, allowing them to own the dispute and therefore own the responsibility to resolve the dispute.
According to the DRS manual, the single most important function of the mediator is to set the agenda or help the disputants define the issues and determine their priorities. While the parties are the ones who actually define the issues, the mediator can assist in organizing the discussion.
It is often useful to put the agenda in writing and to share it with both parties. By agreeing to a common agenda of items and issues to be discussed, the parties have already shown that they are capable of reaching agreement on at least some issues - in this case, what should be discussed.
Depending on the complexity of the agenda, some items may be reserved for future discussion at other sessions of a mediation. As the mediation continues, the disputants may agree to add or subtract items from the agenda. This often occurs as the mediation progresses and it becomes apparent that some issues are either unimportant or no longer contested. At the same time, parties sometimes add an item to the agenda just after it appears that a full resolution can be reached.
There are many reasons that items may be added to the agenda. One of those reasons is that the disputants may not be ready to give up the conflict.
If additional mediation sessions are necessary, the disputants may be given homework to that the negotiations can proceed smoothly and all parties are prepared to discuss the items on the agenda. For example, one or both disputants may be asked to obtain estimates of fair market value, survey land, consult with a professional, or perform other tasks that will assist in resolving all items. This assists the parties to be actively engaged in the process, allowing them to own the dispute and therefore own the responsibility to resolve the dispute.
Step 2 - DRS Model - Initial Statements
Step Two of the DRS Model of mediation is the initial statements by the disputants (or their attorneys).
There are two purposes for the initial statements. First, it allows the mediator to hear what the dispute is about in the words of the disputants themselves. Second, it allows each disputant to hear what the other disputant has to say.
The mediator may jot down various issues or feelings discussed by the disputants, and will typically listen carefully, making sure that neither disputant is interrupted by anyone. It is not unusual for other issues or emotions to emerge later in the mediation session.
It is sometimes very difficult for the disputants to sit quietly while the other speaks. There are a variety of techniques that a skillful mediator may use to ensure that each party is permitted to speak.
Parties sometimes want to include witnesses or evidence at this point in the mediation. If both parties and the mediator agree to permit witnesses or other evidence, it is best if the witnesses remain outside until they are needed.
With regard to evidence, in the DRS model the proceedings are not bound by the rules of evidence used in courtrooms. For example, lay opinions may be permitted, there is no cross-examination of witnesses, and the attorneys, if present, should not be permitted to use the proceedings as another tool for discovery. Furthermore, the strict confidentiality regarding mediations includes witness statements made at mediations and all documents prepared for the mediation. Care should be taken that the mediation is not used to "bury" evidence.
The point of evidence and witnesses at a trial is to convince the judge or jury. The purpose at mediation is to convince the other disputant, not the mediator. The disputants are not encouraged to bring witnesses to mediations in the DRS model, though there are exceptions when they may be helpful or even necessary to a complete resolution of a dispute.
There are two purposes for the initial statements. First, it allows the mediator to hear what the dispute is about in the words of the disputants themselves. Second, it allows each disputant to hear what the other disputant has to say.
The mediator may jot down various issues or feelings discussed by the disputants, and will typically listen carefully, making sure that neither disputant is interrupted by anyone. It is not unusual for other issues or emotions to emerge later in the mediation session.
It is sometimes very difficult for the disputants to sit quietly while the other speaks. There are a variety of techniques that a skillful mediator may use to ensure that each party is permitted to speak.
Parties sometimes want to include witnesses or evidence at this point in the mediation. If both parties and the mediator agree to permit witnesses or other evidence, it is best if the witnesses remain outside until they are needed.
With regard to evidence, in the DRS model the proceedings are not bound by the rules of evidence used in courtrooms. For example, lay opinions may be permitted, there is no cross-examination of witnesses, and the attorneys, if present, should not be permitted to use the proceedings as another tool for discovery. Furthermore, the strict confidentiality regarding mediations includes witness statements made at mediations and all documents prepared for the mediation. Care should be taken that the mediation is not used to "bury" evidence.
The point of evidence and witnesses at a trial is to convince the judge or jury. The purpose at mediation is to convince the other disputant, not the mediator. The disputants are not encouraged to bring witnesses to mediations in the DRS model, though there are exceptions when they may be helpful or even necessary to a complete resolution of a dispute.
As a peacemaker, lawyer has a superior opportunity of being a good man
"Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough."
-- Abraham Lincoln
Lincoln, Notes for a Law Lecture, Abraham Lincoln Online, Speeches and Writings (1850), Source: The Collected Works of Abraham Lincoln, Vol. 2, Basler, ed.
-- Abraham Lincoln
Lincoln, Notes for a Law Lecture, Abraham Lincoln Online, Speeches and Writings (1850), Source: The Collected Works of Abraham Lincoln, Vol. 2, Basler, ed.
Mediating the Litigated Case
This week I will participate in additional training regarding "Mediating the Litigated Case."
I'll keep you posted on additional insights gained from that training.
I'll keep you posted on additional insights gained from that training.
Subscribe to:
Posts (Atom)