Introduction – What is a mediation?
The advantages of mediation
The disadvantages of mediation
“Worldview Mediation™” and “Silver Lining Mediation™”
Silver Lining Mediation™
Standard Mediation Agreement
Mediation is a process by which a third party assists two or more people to settle their difference by themselves.
There is an incredible array of information about mediation on the internet.
- A person who has no connection with the parties, and has no interest in the outcome of the dispute, will facilitate a meeting between the parties (and their legal representatives if applicable) to encourage them to settle the dispute between themselves.
- There are several different styles of mediation techniques such as facilitative, evaluative and transformative, although many mediators use a combination of those when appropriate.
- Whatever is said at mediation is “without prejudice” and cannot be used later on in any court proceedings.
- The standard procedure is:
- Each party sets out their case,
- There is a general discussion to identify the real points of contention (which may not be of a legal nature),
- The parties split for confidential and private discussions with the mediator, which s/he is not allowed to divulge to the other side without permission. This enables the mediator to identify the parities’ real agendas and concerns. The mediator can help the parties better understand their positions and interests in the dispute and to see if there may be common ground to achieve a settlement, and
- The parties have further face to face meetings if necessary to see if a settlement can be reached.
- Mediation empowers the parties to express their own views and concerns, rather than being just a cog in the litigation process.
- Mediation is inexpensive, compared to going to court, and can occur at any time during a dispute.
- Mediation is quite quick, in most cases lasting less than one day. It takes place at any convenient time and place.
- Mediation is simple and less formal with no complex procedural rules, save for fairness and confidentiality on the part of the mediator.
- Confidentiality is maintained and anything said is “without prejudice”.
- The parties’ autonomy is preserved in that any party can walk away from the mediation at any time without any penalty.
- Mediation allows the parties to revise and adjust the scope of their conflict as issues are raised and debated.
- Mediation can preserve relationships. If the parties are in an on-going relationship, a mediation preserves business and personal relationships that could otherwise be irrevocably harmed or destroyed by litigation. Mediation is a collaborative, rather than an adversarial, process.
- Settlements reached in mediation are more agreeable to both parties than court judgments because the parties themselves have made the agreement, and have not had it forced upon them. It is not just a win/lose outcome. A good mediation settlement is not just a simple compromise, but one based on each parties’ interests which may give more to each party than such a compromise.
- Mediation does not always result in a settlement agreement, if each thinks it is worthwhile to continue the litigation process at this time, with all its risks and costs, (the BATNA (best alternative to a negotiated agreement) principle).
- The costs and time of an unsuccessful mediation have to be taken into account.
- Mediation has no formal discovery process, so depending on when the mediation takes place, one party may have to rely on the other parties’ good faith in negotiating.
- Truth and Justice are often sidelined to get to a livable compromise.
- Mediation can be used as a fishing expedition, that is, information that would otherwise not have been disclosed at the time can then be used to one of the parties’ advantage in litigation, later on.
- Mediation lacks the procedural and legal protections and fairness of a court – when there are disparate levels of power, resources or sophistication for example, between the parties.
- A party could feel pressured to settle a dispute, such as in the circumstances described above.
- A party could later on feel that they personally could have a achieved a better outcome, had they and their advisers negotiated differently. In other words, although this is a normal human reaction to any negotiation, the party will feel that they contributed more to it, rather than when a court hands down a verdict, when both parties will feel that it was the judge’s decision, and not theirs.
Mediation allows for flexible solutions and settlements, which arise out of discussions, whereas courts usually only award monetary relief. Other forms, such as injunctions, are expensive and hard to obtain.
To alleviate some of these disadvantages, Jewish Arbitration’s founder, Dov Silberman, realised that certain personal motivations underlay people’s actions. During a mediation it was important to discover to what extent these motivations impacted each parties’ actions.
These motivations could be summed up in the two components which Dov trademarked as Worldview Mediation ™ and Silver Lining Mediation ™.
Worldview Mediation™ and Silver Lining Mediation™ are two components of a new method that both enhances the chances of a settlement and also provides participants with an optimistic view of life after mediation, thereby allowing them to get on with their lives positively and productively.
In mediations, and indeed in general negotiations, Dov felt that it is most important to explore as much as possible the personal worldview of each participant. That is, their general philosophy of life and how they interpret what happens to them. This encompasses the depth and strength of their philosophical, cultural, moral and spiritual beliefs and values which make them the person who they are.
Whatever form of mediation is used, one of the primary roles of the mediator is to move the participants from their “positions” – what they say they want – to their “interests” – what they really want.
Taking an example from Dov’s business website:
Jill is a homeowner. Her position is “My swimming pool must be finished by December 15th, and time is of the essence in the contract”. Her interest is really “I want to go on holiday, on the 15th, without worrying about what is happening at home”.
Jack is the swimming pool contractor. His position is “I have paid for Jill’s materials, but the supplier unexpectedly told me they will be supplied late, so that prevents me from finishing the pool on time, hence I should not be penalised for late completion because it is not really my fault at all”. His interest is “I do want to get the pool finished as quickly as possible, but without losing my profit, so I can get paid”.
Without investigating Jill’s worldview, it may not be realised that she is rejecting any compromise because she has been brought up to have a very strong moral belief that “a person’s word is her bond”. She feels that, if in the past, she has sacrificed profits and maybe even incurred actual losses to fulfil her word, then so should others.
Further discussion may elucidate that she may also have an equally strong belief that children should not suffer for the sins of their fathers. If she realises that Jack is relying on most of his profit from this job to pay for his child’s medical operation, then she would be more than happy to compromise the situation with a solution such as “Jack and Jill will split the costs for a trusted/neutral third party to supervise the work while Jill is on holiday”.
Having articulated their beliefs and values during the mediation, “Worldview Mediation™” has allowed each participant to expand the range of their “interests” and each participant has a greater awareness of where the other person is coming from, and the strength of their feeling.
For people of the same culture or faith, there is an additional advantage of emphasising the deeper common grounds between them. This allows a new sharing and understanding, which the participants can use to achieve a settlement.
Having identified which aspects of their worldview is relevant to the situation at hand, each participant understands how the settlement is actually good for them. The settlement will be in harmony with their personal interpretation of the world, their beliefs about reality, and their general philosophy of life.
In the above scenario, Jack, while having to lose some of his profit to pay for the inconvenience of being supervised, gets sufficient money for the operation, and is happy because that is what he really wants.
Jill, knowing that one of her principles has been compromised and maybe having to lose some money to resolve the matter, is also happy because her negative feelings have been cancelled by the good feeling that she has helped a child in need.
In other words, each of the participants has found their own Silver Lining
Therefore, for mediation between two Jews, as well as having all the tools of every other mediator, a Jewish mediator has the added advantage of being in tune with, and understanding, the depth and strength of each individual’s beliefs and the community’s social structure.
Before any mediation can take place, the parties and the mediator must enter into a Mediation Agreement. This agreement can of course be varied by consent depending on the circumstances. See our Standard Mediation Agreement.