What is the purpose of mediation and how can it help?

The purpose of mediation is to help people involved in a dispute to engage in a problem-solving conversation with one another. In essence, this conversation amounts to an "assisted negotiation" between the parties. Mediation can loosen the "deadlocks" which often prevent resolution and promote understanding, cooperation, and joint problem-solving between disputing parties.

What are the advantages of mediation?

Unlike other forms of dispute resolution (e.g., filing a grievance, going to court, or even asking an expert to decide how a dispute will be resolved), mediation:

1. is informal, 
2. is confidential, 
3. gives the individuals most directly affected by the dispute maximum input in arriving at a solution, and 
4. promotes greater understanding between people in disputes, which gives it a much greater probability of "healing" relationships. 

Is mediation really confidential?

Yes. Except under very limited circumstances.

The Ombuds Office cannot guarantee confidentiality when:

1. an Ombuds Office staff member witnesses a crime or
2. an Ombuds Office staff member is told by a user of the Office about the intent of an individual to harm him/herself or another.

Note: When there is a legal subpoena requiring that the Ombuds Office testify or turn over records, the office will seek legal counsel to "quash" the subpoena and prevent ombuds testimony.

Also, in Colorado, mediators have legal protection preventing their being required to testify or turn over records relating to their mediation work (see CRS sect. 13-22-301, et seq.).

What happens in mediation?

Mediation looks like a "controlled conversation." In the beginning, participants often interact with the mediator(s) directly, as the other party listens. In virtually all successful mediation, the parties talk about the concerns which brought them to mediation and what they hope the mediation will help them accomplish. The mediator asks questions to identify the underlying interests of both parties and to identify the specific issues that need to be resolved for the mediation to be successful. Mediators "re-frame" the problems to focus on the genuine concerns of both parties. Next, the parties generate various alternatives designed to resolve the specific concerns of both parties. They then "fine-tune" their agreement(s) until they are satisfied that the agreements resolve their concerns. Finally, the mediator then types an agreement and gives it to each party to sign, date, and give to the other.

What can you do to help mediation succeed?

Remember that your goal is to gain the cooperation of the other party in resolving the dispute. (It is the lack of cooperation between you that led to the need for mediation in the first place!) So, behave in ways that you think will result in their wanting to cooperate - not resist - you.

Talk honestly about your real concerns AND treat the other person respectfully. This can help you avoid eliciting defensiveness from the other person and becoming further deadlocked into unproductive discussion. 

Listen carefully to the concerns of the other party so that you can demonstrate that you understand them. 

Adhere to the "ground rules" of mediation: "No interrupting" and "No deliberate 'button-pushing.'" 

Keep the content of the discussions confidential unless you and the other party agree to share the contents with a specific person or persons.

Stay self-focused, rather than talking about the concerns of others who are not a part of the mediation. 

For additional information, see Eliciting Resistance VS Gaining Cooperation

When does mediation have the best chance to succeed?

1. the parties are concerned about both the content of their dispute and preserving their relationship, b. both parties talk honestly--and respectfully--about the dispute which led them to mediation,
2. disputes have been present for a shorter--rather than a longer--period of time,
3. the parties believe a negotiated agreement would probably provide a better outcome than their next best alternative,
4. neither party insists that the other should be punished,
5. when hostilities are moderate or low, and
6. it is voluntary for both parties. 

What causes mediation to fail?

When disputants engage in behaviors which elicit the other party's resistance, mediation is likely to fail. For more information, see Eliciting Resistance VS Gaining Cooperation. Also, Fisher and Ury, authors of the classic book on negotiation, Getting To Yes (Penguin Books, 1981) say many disputants make the mistake of assuming that "solving the other guy's problem is the other guy's problem." When disputants are encouraged by the mediator to generate problem-solving options, if they ignore the interests of the other party, this may also limit the success of mediation.

When is mediation NOT appropriate?

Usually, mediation is not appropriate when:

• there is physical violence (or the imminent threat of physical violence),
• abusive or harassing behavior is present AND the person engaging in these behaviors refuses to stop,
• neither party cares about preserving the relationship,
• there is no ongoing relationship between the parties (usually),
• one or both parties insist/s on punishment as the only appropriate resolution,
• the parties want to resolve a "values" dispute by persuading the other to change his/her values on such issues as abortion, capital punishment, etc. (Note: Mediation can help parties in these kinds of disputes to identify their common interests and to more clearly understand the points on which they genuinely disagree.), and
• one or both parties lacks the authority to make agreements,
• one or more participants are drunk, stoned, or otherwise impaired, and/or
• criminal law or the Student Code of Conduct has been violated (usually).