Experiences of mediation and court

mediation and court

I created this diagram to show some of the differences between the experiences of mediation and court.

Mediation is an opportunity for all involved to think creatively outside the box on legal, social and interpersonal issues. Then, participants can decide personally and pragmatically inside the box on agreed issues.

Court is an opportunity for a judicial officer to think logically inside the box on legal issues and to decide inside the box, on behalf of parties, who will win and who will lose on the legal issues.

So the questions is, who will be making the decisions about what?

Mediation epitomised

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Mediation epitomised

I have this piece of art hanging in the entry of my mediation rooms. It serves as a wonderful daily reminder that people’s origins, perspectives, aspirations and destinations vary in many ways. Here they are in a crowd cooperating in their own and others’ interests to accomplish what is important to each of them. To me this epitomises what can be achieved in mediation.

The artist is a young woman by the name of Felicita Sala who grew up in Perth and now lives in Rome. Her blog is well worth a look.

http://felicitasala.blogspot.com.au/

Mediation is not a settlement conference

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Mediation is often confused with settlement conferences.  There are some fundamental differences.  Settlement conferences involves competition resulting in compromise.  Mediation involves co-operation resulting in an agreement.  I developed the set of diagrams below to demonstrate these processes.

The parties’ positions on the diagram below represent the outcome they are aiming for.  The primary questions in a settlement conference are “What is your position?” and then “What is the least you are prepared to settle for?”.  Neither party can have all that they want.  They will each need to compromise to reach a settlement.

Referring to the diagram, the most efficient settlement will be a compromise found somewhere along the red line.  In a best case scenario, if there are ten units available, all ten will be shared.  However, in any case other than the most efficient negotiations some units will be lost in legal fees, other advisors’ fees, time, and emotions.  This loss may be considerable because the process is competitive.  In these cases, the settlement will be in the grey area and will involve less or much less than ten units.  A unit could represent anything tangible which each participant wants and is important to them.

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The diagram below represents the fundamental difference that mediation offers.

The participants’ placement on the graph represents all that is important to each.  The primary question in a mediation is “What is important to you?”.  Each participant can have all that is important to them.  They will each need to be creative to reach a mediated agreement.

Referring to the diagram below, the most satisfactory outcome will be an agreement found in the dark blue square.  In a best case scenario, if there are ten units available, all ten could be available to each participant.  Realistically, it is likely that some units will be lost in legal fees, other advisors’ fees, time, and emotions.  However, because the mediation process is co-operative this loss will be minimal.

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Referring to the diagram below, in a mediation it is likely that the agreement will be in the lighter blue areas.  Each participant has the potential to gain up to ten units of what is important to them.

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Margaret’s Mediation Maxim

mediation diagram halsmith dispute resolution

I developed this diagram after reflecting on the essence of what works in mediation.  I’ve found that in this case, what works for one works for all.  When participants, support people, lawyers and the mediator all listen generously they are all inclined to think creatively, speak moderately and decide wisely, leading to satisfactory conclusions.