The mediator may provide information and options, but the participants make the final decisions. Additionally, the mediator establishes ground rules for negotiation, opens up the channels of communication, articulates and/or re-frames the needs of each participant, and assists in problem solving. Mediation is a confidential process except where disclosure is required or permitted by law. Disclosure is required to report child abuse or elder abuse. Disclosure is also permitted regarding the planning or committing a crime.
All discussions shared during a separate session during mediation must also remain confidential – unless the disclosing party gives you permission to share the information with the other side.
The role of the mediator includes conducting an opening statement, preparing the parties to mediate, maintaining decorum, professionalism and control of the session, structuring and managing the discussion, and building on partial agreements. An effective mediator demonstrates empathy, builds rapport, establishes trust, sets a cooperative tone, and remains neutral and impartial.
One of the most common complaints from clients entering mediation is that they cannot communicate with each other. All of us have experienced the frustration of feeling misunderstood. In mediation the first step toward resolving a conflict is for the mediator to understand the point of view of each person, and then to help the parties understand each other. This requires effective listening and speaking skills.
Generally it will take time for the participants to reach an agreement. Typically, a party wants to vent and explain how wrong the other person is and how right they are. Many times we cannot get to the nuts and bolts of the issues unless the person venting feels that they have been heard and understood. Remember that people are hurting as their wounds are still fresh from the break-up of the marriage. It is important not to rush to reach an agreement. In reaching an agreement the decisions have to be voluntary.
Once a verbal agreement is reached it will be typed and signed during the mediation. The parties and their attorneys will review the agreement to make sure that it is accurate. Once signed the mediation agreement becomes a binding contract between the parties.