Choosing Mediation

In this section

• Why a WMAC Mediator?
• What is Mediation?
• How Does Mediation Differ from Litigation and Arbitration?
• What is a Typical Process?
• When to Use Mediation
• When to Seek Specialists
• Mediation Styles
• Fees, Services, and DRCs
• Search Terms
• Standard of Practice

Why a WMAC Mediator?

Washington Mediation Association provides a trademarked WMAC designation to members who have voluntarily certified. The WMAC means the mediator has completed a 36 – 40 hour basic mediation class, completed an internship with mentor mediators and maintains current training with classes, and minimum requirements related to ethics and diversity or has completed 200 hours or more of mediation and been recommended. Applications for WMAC certification are reviewed by the WMA certification committee for completeness and compliance with standards.

Mediators choosing to maintain a WMAC designation elect to communicate to future clients their seriousness about maintaining current training and support for state wide certification standards.

WMA does not observe, critique, or monitor the actual conduct of mediations by its certified members, nor do we serve as a disciplinary body. The certification relates to education and experience standards.

What is Mediation?

At its heart mediation is a place and time when an impartial third party attempts to help two disputants find a common, workable solution. Typically it follows a proven format that allows each party to air their concerns and to focus on mutually acceptable outcomes. Skilled mediators can guide the process but do not insert their solutions. Voluntary, self-determination by the parties is a guiding principle.

Mediations can take many forms and occur in many contexts from highly formal to informal. While informal conflict resolution is often desirable, mediation commonly refers to a formal process conducted under the auspices of the Uniform Mediation Act (RCW 7.07) and commonly includes an agreement to mediate. The formal mediation agreement often addresses confidentiality and privilege. Mediators typically promise confidentiality of mediation communications by the mediator. The parties normally agree that they, too, will not share the contents of the mediation. Confidentiality is an agreement between the parties on what can or cannot be disclosed.

The Uniform Mediation Act protects some mediation communications from disclosure in court proceedings. Parties with concerns related to later disclosures may want to research what the Act allows.

Additionally mediators voluntarily agree to abide by Standards of Practice. The Standards are listed to help consumers know what is considered ethical practice of mediation.

How Does Mediation Differ from Litigation and Arbitration?

Mediation is a voluntary process of self-determination with assistance from an impartial third party. The fact that parties retain self-determination may impact the certainty of a decisive outcome. The voluntary agreement by parties often results in better compliance and fostering ongoing relationships. The process is sometimes faster and less expensive than litigation or arbitration.

Negotiation is the effort by two parties to reach an agreement without assistance from a third party. Mediation adds an impartial person, a process, and assistance. Parties often attempt to negotiate prior to mediation and if the discussions become difficult seek the help of a trained mediator.

Litigation is the process of going to court, the “I’ll-sue-you” option. The parties are asking a judge to formally determine which party conforms to the law and/or agreements. The parties are adversarial, most often represented by an attorney who argues for their position. A decision is handed down which parties are obliged to obey. Compared to mediation the parties give up self-determination in favor of having someone else resolve their dispute. The process is often expensive with delays and postponements. Court decisions are enforceable but parties are sometimes resistant to compliance. Ongoing relationships may suffer when one party deems itself a winner, the other a looser.

Arbitration also has a third party making an enforceable decision. Arbitrators are not necessarily practicing members of the bar; typically parties select them because of their extensive subject matter expertise and perceived neutrality. Arbitrations take a variety of forms but in general are seen as a means for an expert to resolve a dispute. Like court there is a guaranteed decision. The parties give up control of the resolution. Arbitration can be expensive depending on the cost of experts. It, too, can result in “grudging compliance” which impact relationships or satisfaction in the future.

What is a Typical Process?

Mediation processes can vary greatly depending on the mediator, parties, or issues. Face to face mediations may suggest one process; Shuttle mediations with parties in different locations may suggest another. Below is a common scenario but by no means the only one.

Often one party contacts the mediator or intake person who will help determine if the dispute is appropriate for mediation. When mediation appears to be appropriate, the other party can be invited to participate and a date and time determined. The process of intake can be complex and if significant time is required to establish the mediation, clients should expect to compensate the mediator for services. Sometimes the intake requires more time than the actual mediation.

Mediators usually spend some time before or at the beginning of a session explaining the process, roles, and expectations and signing an agreement to mediate. They then have each client share some history of the dispute and what they hope to accomplish in the mediation. Typically the mediator will summarize the statement of each party to be certain of a clear understanding. The mediator may inquire further on some issues to assure clarity and understanding.

Commonly mediators next move to an agenda or list of issues to be resolved and parties agree on where to begin. Issues by issue agreements are negotiated. Depending on the nature of the conflict agreements are captured in writing as they are made or at the end when all issues have been verbally resolved.

The written agreements take many forms and can range from contractual language to written understandings. The nature of the conflict and needs of the parties will determine the appropriate form and content of agreements. Parties can agree that they intend the agreements to be enforceable. Agreements sometimes affect legal rights and the mediator may ask that parties obtain legal services before signing binding agreements.   Mediators are careful not to advocate for individual parties and when an attorney serves as an impartial mediator they often advise clients to seek independent legal advice prior to committing to an agreement. Clients are often encouraged to craft agreements in their own words to assure their intent is appropriately captured.

When to Use Mediation

Any time a conflict could benefit from direct party-to-party discussions mediation should be a consideration. Often the interactions in a dispute leave the parties dubious about even being able to talk with each other, especially when strong emotions are an element. The presence of a trained third party to assist often makes all the difference. Even if agreement is not reached the opportunity to be heard and understood may have value. Mediation has a long and successful history of turning intractable disputes into satisfactory outcomes.

Mediation is of value when the alternatives to reaching an agreement are undesirable or unacceptable. Sometimes the cost of the conflict – both monetary and emotional is so high that finding grounds for an agreement is highly preferable.

Mediation is particularly valuable if two parties face an ongoing relationship and need to communicate related to mutual interests. Divorced parents face effectively parenting their children. Agreements about the parenting and communication may substantially improve the lives of the children. Neighbors, despite the conflict, may continue to live side by side. Constant irritation and suspicion degrade the quality of life. New understandings can allow both parties to move forward with increased tolerance and good will.

Mediation may be less valuable in situations where no future relationship is contemplated or a party must insist on a single, non-negotiable outcome, or legal rights must be enforced and there is no room for movement. Even in some situations with little room for movement the opportunity to meet, talk, and understand helps parties accept the inevitable. The presence of the mediator can help keep the conversations civil and productive.

When to Seek Specialists

The degree to which the mediator must be expert in the content of a conflict varies. In a highly technical field with specialized vocabulary a mediator familiar with the terms and protocols may be valuable.

Often the conflict is more related to the people than to the technicalities. Mediators capable of helping people communicate may be equally effective as a subject matter specialist. The specialist may run the risk of having preconceived ideas about outcomes that could conflict with parties need to craft their own solution.

Mediation Styles

Mediators sometimes distinguish their style of mediating as evaluative, facilitative, or transformative.

Evaluative mediators are often attorneys and in working with clients will help evaluate how a party’s position or proposals may be viewed by the law. When parties are concerned about legal compliance or protection of rights a mediator offering evaluative style mediation can guide clients to outcomes that are more likely to align with statutes or consistency with legal rights.

Facilitative mediators tend to focus on helping clients understand and communicate. They are often attuned to resolving underlying emotional conflicts and working to find solutions that will allow parties to have successful future relationships or communication.

Transformative mediators tend to assume the role of teacher, helping clients understand how they deal with conflict and coaching more effective ways to interact.

Foreclosure Mediation: The Fairness Foreclosure Act (RCW 61.24.163) provides borrowers an opportunity to talk about other options than Foreclosure with the lender’s representatives. Foreclosure mediations differ from other mediation in eligibility, format, confidentiality, administration, and conduct. The Washington State Department of Commerce administers the program and mediators are specifically trained to conduct foreclosure mediations. Visit the Department of Commerce web site for details.

Fees, Services, and DRCs

Fees vary with mediators experience, educational level, and reputation. In general mediation requires advanced learning and clients can expect to pay fees similar to other professional services. In general both parties are expected to pay a portion of the fees so that both are invested in the process. Sometimes sliding fee scales are used (especially by DRC’s) since the meaning of a dollar can be dramatically different between a poorer party and a wealthy one.

Professional mediators are often attorneys or people who have established a conflict resolution practice focused on mediation. They may have significant experience as the result of the volume of cases they handle. Complex issues requiring multiple meetings and background work are often more appropriate to paid mediators than volunteers who may only be part time in their volunteer activity.

Volunteers typically work through a Dispute Resolution Center. DRC’s were set up through RCW 7.75 in an effort to reduce case loads for courts and when possible to resolve conflicts with voluntary solutions. DRC’s are typically nonprofits recognized by the county government where they are located. They are funded through court fees, contributions and fees for service (often on sliding scales). Volunteers typically have taken the 40 hour basic mediation course and completed internships. DRC’s vary in allowing clients to request individual mediators.