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Mediating Disputes in Oregon
What Mediation Is
Mediation is a consensual process in which an impartial third person assists two or more disputing parties in reaching a voluntary agreement which resolves a dispute or provides a framework for future relations between the disputing parties. The mediator helps the parties identify their individual needs and interests, clarify their differences, and find common ground.
- The parties are the decision makers; the mediator has no authority to render a decision.
- The parties determine the issues that need to be addressed; the mediator guides the process and maintains a safe environment.
- The mediator models and facilitates active listening skills.
- The mediator does not give advice to the parties, legal or otherwise. However, the mediator may help the parties generate options for mutual evaluation, possibly with the advice and assistance of another professional.
- The process is confidential, with any exceptions disclosed and discussed prior to beginning a mediation.
- The success of mediation rests on the willingness of the parties to work together on finding solutions that meet each other’s needs.
What Mediation Is Not
Mediation is not litigation. Litigation is the formal legal process in which parties use the court process to resolve their disputes. The judge or jury determine the outcome of this process, unless a negotiated settlement is reached first.
Mediation is not arbitration. Arbitration is a form of private adjudication, where parties present evidence and argument to an impartial third person (the arbitrator). The arbitrator then reviews the evidence and renders a decision which may be imposed and binding on the parties. The arbitrator determines the outcome, much as a judge determines the outcome of a trial.
Mediation is not counseling or therapy. Although the process is often therapeutic for the parties, the primary goal of mediation is to reach an agreement, not to resolve the feelings associated with the dispute.
What Sets Mediation Apart
- Mediation approaches disputes from a fresh perspective. Instead of looking backward to decide who is at fault, it looks forward to what agreements the parties can reach to resolve their disputes or govern their future interactions.
- The mediator uses his or her skills to help parties understand each other’s needs and interests to find common ground. From these, the parties begin to generate options.
- The options are not based on “giving in” or compromise of any principle. Instead, they are based on a search for creative ways to resolve differences and meet identified needs.
- Agreements are reached only when the parties all agree. Because mediated agreements are voluntary, they are more likely to be followed by all parties.
What Are the Steps to Mediation?
Different mediators describe the process differently. However, there are several common stages that the parties move through with the assistance of the mediator.
- The Introduction. The mediator sets the stage, discusses the ground rules and describes the process.
- Information Sharing. The parties have an opportunity to share information and describe their desired outcomes.
- Defining the Issues and Understanding Interests. The parties discuss the issues that need attention and the underlying needs and interests they hope to satisfy.
- Generating Options Toward a Solution. The parties generate and evaluate options that will best satisfy their needs and interests.
- Writing the Agreement. If agreement is reached and the parties desire a written record, the mediator may help the parties write their agreement as an outline for agreed upon future action.
The above information was modified, with permission, from literature provided by the Alaska Judicial Council.