What are the best ways to ensure mediation is safe and confidential?

Mediation is about a person(s)!creating and holding a safe space. Sometimes that’s with participants together and sometimes that’s possible and it’s through the mediator shuttling. The ability of the mediator to connect and to build trust with all participants is critical. Across the contexts in which mediation occurs this needs thought. In group conflicts or where race and gender is involved it may be hard for one person to connect with everyone. Check this as part of the intake. In multi party or mediations that go over months or years ( land rights, mining, peace, inter city issues) consider a convenor checking levels of trust in the mediator and the process. Also consider a team of mediators

As an unregulated industry, there is nothing to stop anyone from calling themselves a mediator. In Australia, looking for a mediator who is accredited under AMDRAS (formerly NMAS) will mean you have a person who is trained in the mediation model. That being said, you should also look for the person's experience, both in mediation and generally, to determine if they are the right person for your mediation. Unfortunately, most mediation courses do not focus on negotiation skills. As the mediators job is to facilitate a negotiation, I recommend looking for a mediator who understands negotiation and can provide value in this area.

A qualified mediator is the key to any mediation's success, that doesn't mean just qualification through credentials or associations with certain organizations. The true qualification is strong inter-personal and inclusivity skills the mediator must have. A good mediator is probably one more local who understands the dynamics of the cultural-religious norms, that play an important role to heal the divide. Although this can be detrimental aswell if you feel it will subject you to local biases so be careful about that. Also don't be fooled into thinking a former judge may be a good mediator - often they ran their courtrooms in a authoritarian manner and it is counter-productive if mediations are ran in a similar fashion.

More than the mediator, there should be willingness amongst the stakeholders to evaluate the win win solution. The process of mediation in many organisations is still at a nascent stage. Building trust, confidence and the faith in the process if Mediation is critical.

What is it that parties are trying to work through here? Pre-mediations or intakes are crucial information gathering sessions that mediators can use to find out what parties are concerned about. Equally, if not more important, are the expectations that parties are to have coming into the mediation. The mediator should set out how the mediation will take place and how parties should be expected to conduct themselves. Crucially, a competent mediator should assure parties that the mediation is a safe space and that parties are at liberty to explore their concerns as well as their solutions within that confidential space. Disagreements are most certainly to happen in a mediation but a mediator can preempt how to deal with them beforehand.

Sometimes I get push back and clients refuse to sign the Agreement to Mediate. This is a red flag because they are refusing to agree to the boundaries and don't respect the process. I often see people refuse to sign the agreement when there have also been allegations of coercive control. If a person refuses (or just fails to sign) my agreement I won't go ahead because I need to determine if they are trying to control the process. Sometimes this control is an unconscious decision and when I call people on it they then proceed to sign and are very respectful of my process moving forward. Where people refuse to sign, I go back to the start and consider if mediation is appropriate and implement additional supports like legal support.

Parties are strongly encouraged to agree on certain terms prior to starting a mediation. Confidentiality should certainly be discussed, but so should other "ground rules" in order to manage the expectations of the parties. These could include language specifying the parties' voluntary participation, good faith negotiation, and the Mediator's role. Furthermore, if mediation is conducted on a parallel track of an arbitration, the Mediation Agreement can be entered into a consent award by the arbitrator, in case one has already been appointed in the arbitration.

Taking the time to agree on how the mediation will progress has a positive psychological impact. The mediator should assist the parties in coming to these agreements rather than dictating the process. Agreeing on process is the first sign that the parties are capable of finding mutual ground and making agreements together.

This is very important from the beginning setting the ground rules. Its like a newly untamed horse - if you give the right signals at the reign from the beginning it will be easier as you ride through. If you don't set it right from the beginning will be more difficult as you progress. A basic ground rule is mutual respect - this is the most important rule that needs to be emphasized. Your position as a mediator needs to be acknowledged and the parties who each will be given an appropriate time to express their perspective need to value the other. Often parties forget, they came voluntarily to help resolve the matter - this helps in reminded them to maintain cordiality and respect throughout the duration of the mediation.

Here's a what not to do! In one mediation, held at the office of one of the lawyers, the hosting lawyer took the large room with lots of natural light. The other party was put into a much smaller internal room without natural light. The party in the internal room was less than impressed and it really didn't give a sense of working together to get an outcome. In a case like this, I try to have the parties alternate rooms if there are not too many people. The nice room is for joint and private sessions. The smaller room is for when the parties are alone.

Consider the choice of venue holistically. Will the room be too stuffy or the meeting table too large that parties feel the distance between themselves as well as their possible solutions? At the very least, the main room should be big enough and the furniture should be conducive to movement and letting parties feel that they are on the same side. Also consider smaller breakout rooms where parties can speak with the mediator privately if need be. This is another form of safe space where parties can feel assured to strategise and deliberate with the mediator to move the mediator forward. Do also contemplate visual aids that may help assist the discussion during the mediation.

An example of this is ensuring the parties involved have adequate space in a mediation session and also have a mechanism to identify their needs as to what safety looks like to them ahead of mediation. Also, persons serving as mediators should be well aware or trained on how to prep parties on body language, tone and cultural norms of each party. Additionally, ensuring the set up of the space isn’t clustering parties together, offers tools to help parties relieve anxiety the mediation may introduce such as “fidgets” and “water”. Parties should be able to opt-in or out of having a virtual mediation as this may not be preferred, if virtual is the best option similar preparation should be put in place.

The room should be comfortable for all not intimidating to anyone. Their should be amenities provided such as water , snacks and pens and paper for note taking. Time out should be allowed if needed to take a break.

Complete a premeditation assessment with parties individually to determine what concerns they have and any previous experiences between them that warrant special precautions. Also secure all mediation documents both physically and electronically.

Remember the amazing thing about mediation is that is preserves the relationship between the parties, its an amicable dispute resolution that mutually is agreed to - its a happy place if successfully achieved, so stay in touch not just with the other party but the mediator who can be assistive in the future before the dispute is finally settled, particularly if some minor matter comes up. The mediator was there to ensure dialogue and communications remain open to help resolve matter mutually. In the event the mediation is not a success, feedback from mediator is important so much so that perhaps from that you may decide to try mediation another time with another mediator after understanding where the lacuna was if there was any.

La participation des conseils techniques ou juridiques peut être nécessaire dans le processus de médiation. Le médiateur doit toutefois s’assurer de l’équilibre des forces des parties en médiation. Lorsque les Avocats sont présents en médiation il faut prendre garde à ce que leur rôle ne soit pas celui du plaideur - au risque de renforcer les antagonismes ou de cristalliser davantage les positions. En médiation, l’avocat doit être un allié du médiateur, en capacité d’utiliser des techniques de négociation raisonnée pour échafauder les solutions acceptables pour les parties. L’avocat devient en médiation force de propositions aux côtés de son client et doit rassurer celui-ci sur la faisabilité juridique des solutions échafaudées.

Before starting a session make sure you have review possible questions and scenarios with a peer or upper management in order to assure you are bringing the right data and questioning to find the right root causes of a situation.

It is key to receive feedback from those who are directly involved in the mediation process. I.e. the parties or sides of the mediation. You would want feedback on the process itself and your role to feed into improving future mediation.

It’s good advice to seek support from team members, and to even actively increase the size of the team with those who may have specialized roles, and to do this simultaneously as you become aware of the need for any of that particular type of specialized input. What’s most important is to achieve the empowered autonomy to pump the brakes and slow down the process if any of this becomes required. It’s a voluntary process. It has to remain a voluntary process, and that means it continues in a way that feels comfortable and provides space to acquire more data and seek further opinions and advice as the process continues.

Mediated negotiation (mediation) is a dispute-resolution technique. A mediator shuttles between separated parties. It’s been used to resolve everything from schoolyard disputes to war and peace. It’s particularly useful in two situations. First, parties must either coexist, cooperate, or maintain a defined relationship. Commercial transactions, divorced couples with children, and international boundaries come to mind. Secondly, parties are likely to come to blows. Divorced couples with children, schoolchildren, and workplace issues come to mind. Words like, confidentiality and safe-space, etc. have very different meanings in each of those contexts. Don’t they? There are lots of jurisdictions, mediators, and venues. Choose wisely.

No mediator wants to receive a subpoena for the contents of a mediation file, especially in a situation where there may not be a state confidentiality statute that would allow a certified mediator to quash the subpoena under the specific terms of the statute. In such situations, it’s not a bad idea to have limited contents in an actual physical file. Instead of having the documents submitted to you directly, when conducting Zoom sessions, review them through a “share screen” process, discuss them and take them into consideration, but don’t retain copies of the documents themselves.

Mediation safety hinges on recognizing the limitations of the attention span. The average adult's attention span is around 15 minutes yet mediations often extend for hours without adequate breaks. This oversight can lead to frustration and reduced focus among parties, which paves the way for an unsafe mediation environment. To ensure safety in mediation, mediators must prioritize frequent breaks. In the same way we are mindful of bio-breaks we must also be mindful of regular mental breaks. These breaks help maintain a calm atmosphere and provide opportunities for mental de-escalation before issues intensify. By recognizing the finite capacity of attention, mediators can significantly enhance the safety and efficacy of the mediation process.

I notice that the content of this article does not really seem to address the question in the article's title. Ensuring the safety of the participants in a mediation may have very different components depending on the type of mediation. A civil/commercial mediation, a family mediation and a community mediation between warring neighbours may require very different levels of thought to be given to ensuring safety, both physical and psychological. I know one American mediator who makes it an express ground rule that no one should attend his mediations with a loaded weapon! I have never felt the need for such an express rule in any of my mediations, but I do encounter very angry and aggressive parties in community mediations from time to time.

If parties are represented by lawyers, if i am sitting as a Mediator, I will contact the lawyers first to bring home the message of confidentiality to their respective clients.