tennessee supreme court alternative dispute resolution
TRANSCRIPT
“The Art of Mediating”Tennessee Supreme Court Alternative Dispute
Resolution Commission
Raymond L. StevensonRule 31 Practitioner
Corporate Office: 27 Brentshire Sq.
Jackson, TN 38305
Ph. 731 571-4408
Tennessee Governor's Advisory
Committee on Employment
27th Judicial District Court
U.S. Equal Employment Opportunity
Commission (EEOC)
Why is Mediation an Important Topic for Professionals?
CONFLICT is an important topic.
Mediation is a power tool in ADR toolbox for managing
and resolving conflict.
Professionals Routinely Conduct Informal Mediation
They use the same skills mediators use and many of
the same processes.
Frequently function as informal mediators.
Frequently conduct informal mediations.
Big M. and small m. mediators.
Formal and Informal Mediator RoleBigMMediator Small m Mediator
Outsider-----Insider
No Stake in the outcome-----Stake in the outcome
Is not a decision-maker-----May be a decision-maker
Trained in mediation-----May have had mediation training
Formally accepted by parties-----May not be acceptable to all parties
Able to act impartial-----Able to act impartial
Seen as impartial-----May not be seen as impartial
Formal mediation process-----Informal mediating presence
Role is relatively bound-----Role is flexible, multi-sided
Authority and values come-----Authority and values come from
from profession one’s position in the group
May work with an “m”-----May work with an official “M”
mediator mediator
Conflict happens in the workplace. It can come from
misunderstandings, client dissatisfaction or disagreements among
employees. If left unaddressed, business effectiveness declines
and customer dissatisfaction impacts the bottom line.
My company’s excellence in conflict resolution and mediation
skills give us the abilities to promote effective and positive
solutions that build inter-personal understanding, increase
business effectiveness, and send customer satisfaction soaring.
Mediation DefinedMediation is a process wherein the parties meet with a mutually impartial and neutral person who assists them in the negotiation of their differences.
Role of the MediatorMediation leaves the decision power totally and strictly with the parties. The mediator does not decide what is "fair" or "right," does not assess blame nor render an opinion on the merits of a case under litigation. Rather, the mediator acts as a catalyst between opposing interests attempting to bring them together by defining issues and eliminating obstacles to communication, while guiding the process to avoid confrontation and ill will. The mediator will, however, see concessions from each side during the mediation process.
Forbearance from Litigation During Mediation and Confidentiality of ProceedingsAt the outset of a mediation process, the mediator may seek agreement from the parties prior to litigation during the mediation process and hold everything that is said in the various sessions confidential. Litigation is not deemed an admission to guilt, nor can it be used against any party in any other proceeding if mediation fails.
Procedures: Joint Session Followed by Private CaucusesMediation generally begins with a joint session to set an agenda, define the issues and ascertain the position and/or concerns of the parties.
The joint session is then followed by a separate caucus between the mediator and each individual party or their counsel. This allows each side to explain and enlarge upon their position in confidence. It also gives the mediator an opportunity to ask questions which may well serve to create doubt in an advocate's mind over the validity of a particular position.
Confidential ListenerOne form of mediation is known as "confidential listening"
where each side agrees to reveal their settlement positions to
the mediator in a private caucus so that it can be ascertained
if there is any overlap or common ground upon which to
reach a settlement. The ground rules must be agreed upon
up front and the mediator, of course, does not reveal the
information given in the private caucus. The only thing
revealed is whether or not it appears to the mediator that the
parties are within a zone of settlement.
Common Stages of Mediation Process
Preparation
Joint Session: Opening
Private Meeting
Joint Session: Closing
Preparing Yourself and Your Client for Mediation
Define client’s interest and position.
Identify desirable range of outcomes.
Insure client has realistic expectations about the
possible outcome
Be familiar with key legal issues.
Know and thoroughly investigate key facts.
PreparationPrepare your client and key witnesses.
Rehearse/conduct a “mock” mediation.
Bring all key documents.
Prepare materials that will help to educate and
persuade.
Choose the appropriate mediator.
Summarize important information for mediator and other side.
Determine how best to tell your story
Identify all people who are necessary for settlement and have them present or available.
Identify who would interfere with mediation and be sure to keep them out or limit their participation.
Have the appropriate attorney.
Continued
JOINT SESSIONOPENING
Mediation Introductory Comments
Parties Tell Their Stories
M EE
HR EEATTY
HRATTY
EE’sSPOUSE
PRIVATEMEETINGS
M EE
EEATTY
EESPOUSE
JOINT SESSIONCLOSING
EEM
HR EEATTY
EESPOUSE
HRATTY
Why Has Mediation Become the
American Idol of
ADR Mechanism?
1. Parties control process and
outcome
2. Confidential
3. Saves time
4. Save money
5. Avoid or shortens litigation
6. Preserves relationship
7. Fair and neutral
8. Gives participants an
opportunity to tell their story
9. Improves communication
10. Enables employees and employers to
discovery real issues in the dispute.
11. Gives employer valuable information
about the workplace.
12. Not threatening
13. Utilizes expertise
14. Is a forgiving process
15. Usually results in a “Win Win” outcome
Where Will the HR Professional Experience
Mediation?
Small m. mediation – some form of it
everyday – in the workplace.
State and Federal Government.
State and Federal Courts
Corporate internal dispute resolution process.
Collective Bargaining Agreements.
Whistle Stop Tour of Business
Mediation Program
Workplace Mediation Program
The HR Professional as a Small m. Mediator
Mediating wherever you are (same).
Mediation process and skills are adaptable to
informal situations (same).
Mediator and HR communication skills the same.
Mediator and HR problem solving skills the same.
Finalizing and ratifying agreement
(same).NBA (National Bar Association) Magazine
Things HR Representatives Can Do During
Mediation to Make it a Success
Toss a bouquet
Goal: Heal not hurt
In joint, don’t encourage a demand
Power of apology/regret expression
Allow employee to tell story
Never assume what employee or their attorney
know
Role of attorney versus role of mediator
Not a linear process
Way to Respond
The Door is Open
