What is Mediation?
Mediation is an effort by the participants to reach an agreement through negotiation and discussion. Mediation is not an adversarial process. Participants work together at cooperative problem solving, and the participants, not the mediator, control the outcome. A settlement is based upon the voluntary agreement of the participants.
Roles of the Mediator and Participants
The mediator is an impartial and neutral facilitator, not a decision maker. The primary role of the mediator is to guide the process and help the participants discuss the issues in a constructive manner that will enable them to negotiate a mutually agreeable and beneficial settlement. A mediation can be led by a single mediator or by co-mediators who work as a team.
The success of a mediation depends upon the participants' willingness and ability to work together to creatively and cooperatively resolve their dispute. To achieve this goal, the participants must be willing to
- talk to each other and share information openly and honestly,
- listen to each other without interruption,
- stay open to ideas, options, and alternatives, and
- generate creative solutions to meet the needs of all participants.
The Mediation Process
The process may vary slightly for different mediators, depending upon their training and experiences. Generally, participants can expect the following format.
- Prior to the mediation, the mediator meets with each participant individually to get an overview of the issues to be discussed.
- The mediation is scheduled at a neutral place at a mutually agreeable time. More than one session may be needed.
- The mediation begins with the mediator or co-mediators making an opening statement describing the purpose of mediation, the roles of the mediator and participants, the process, confidentiality, the role of legal counsel, and procedural guidelines.
- Each participant describes the situation that brought him or her to mediation.
- The participants identify the topics and issues for discussion.
- The participants create an agenda to guide the order in which topics are discussed.
- Participants discuss the agenda items, usually one at a time.
- Participants educate each other about their interests or needs. (Interests can be substantive, procedural, or psychological.)
- Participants explore solutions that are mutually satisfactory that meet the interests and needs of all participants.
- If an agreement is reached, it is written down and signed by the participants, but not the mediator.
It is important to follow the steps in the process in an orderly fashion. Participants often make the mistake of jumping from describing the situation to looking for solutions. Skipping the intermediate steps often leads to frustration and risks locking the participants into positions that derail a successful mediation. The mediator's role is to keep the participants on track, but their cooperation is essential.
Generally, the mediation is face-to-face. At times, the mediator may decide to discuss issues with each participant separately in a private caucus. The participants may also request a private caucus. For example, if one of the participants is feeling overwhelmed, he or she may request a private caucus to discuss the problem with the mediator.
Confidentiality will be discussed at the beginning of each mediation. An agreement will be reached by all participants concerning how the participants will maintain the confidentiality of the process. The mediator holds information obtained in the mediation confidential to the extent allowed by law.
Each participant may consult an attorney for advice about his or her legal interests. Although attorneys are not present at the mediation sessions, each participant is encouraged to have his or her attorney review the settlement agreement prior to signing. Mediators do not provide legal advice or counsel.
Interest-Based Negotiation Strategies vs. Positional Bargaining Negotiation Strategies
The mediators at NC State are trained in interest-based negotiation strategies. To understand this type of negotiation strategy, it is helpful to compare it to positional bargaining negotiation strategies.
In positional bargaining, the parties stake out a position and try to get an agreement as close to their position as possible. There are four possible outcomes: win/lose, lose/win, lose/lose, or compromise. A compromise agreement, with each party backing off their positions little by little until they agree, is the optimum overall result that can be expected. Positional bargaining is characterized by the following type of exchange between participants: "I want XYZ!" "I'm not giving you XYZ!" Someone may win; someone may lose; both may lose, or a compromise may be reached, but neither party is likely to get everything he or she needs.
Interest-based negotiation, on the other hand, looks beyond the participants' positions, and asks "Why does he want XYZ?" and "Why can't or won't she give him XYZ?" By examining the underlying interests and needs of the participants, it is possible to generate a number of solutions designed to meet those interests and needs. Instead of working from one position, the participants explore many options. Finding the solution that meets the needs and interests of all participants is the goal of interest-based negotiation and results in a win/win resolution of the dispute.
The Benefits of Mediation vs. Grievance
- A grievance proceeding is adversarial in nature. Mediation is a cooperative effort.
- Once a grievance is filed, the parties lose control over the outcome. In mediation, the participants control the outcome.
- In a grievance proceeding, someone is going to win, and someone is going to lose. In mediation, both participants can win.
- A grievance proceeding can drag on for months, and sometimes years. Mediation can resolve a dispute within a matter of days.
- A grievance proceeding, because of its adversarial nature, can destroy future working relationships between the parties. Mediation helps the participants work together, often improving working relationships.
In the event that the mediation does not succeed, the parties are free to pursue the same legal remedies they had before they entered into mediation. (Note: Mediation does not extend the time for filing a grievance.)
What Can Be Mediated?
Not all disputes can be mediated, and not all issues in a dispute can be mediated. Issues that can be negotiated include:
- Things, such as
- Budget issues
- Information included in personnel files
- Behaviors, such as
- How people treat each other
- Sharing space
- Respecting boundaries
- Communicating about problems
- Following through on promises and responsibilities
- The ways people do their work
- Structures and Systems, such as
- How decisions are made
- Job responsibilities
Some concerns can be discussed, but not negotiated.
- Principles, values
- Personal style
- Hurt feelings
- Management style
- Blame, fault
- What happened
Issues that usually cannot be mediated include:
- Determining the truth of what happened
- Determining fault and punishment
- Addictive behaviors
- Pathological or abusive behaviors
- Difference in power between the parties
- Where the real decision-maker is not present
- Where people who may be affected by a decision or whose cooperation is necessary are not represented
- Where investigation and disclosure are required before fair negotiation can take place
- Where the parties do not understand the complexities of the issue or their legal options
The NC State Faculty Mediation Team
NC State has a team of faculty members who are trained mediators. They volunteer their time to promote collegial relationships within the university environment.
Richard H. Bernhard, Professor
Industrial & Systems Engineering
NCSU Campus Box 7906
Harriette O. Griffin, Lecturer
Accounting-College of Management
103 C Nelson Hall
NCSU Campus Box 8113
Jessica K. Jameson, Assistant Professor
202 Winston Hall
NCSU Campus Box 8104
George H. Wahl, Jr., Professor and Past Chair of the Faculty
328 Dabney Hall
NCSU Campus Box 8204