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I have spent over 30 years designing mediation and ADR processes for complex, multi-party cases.

I’ve often been asked by lawyers or their clients, “Why should we mediate when negotiations have stalled, and we already know what the other side is going to say?” – this is the trap of conflict and it is a runaway train with few ways off short of the courthouse steps. Unfortunately, courtesy of Covid the courthouse has been closed.

What does a mediator do? A mediator is a neutral 3rd party empowered by the parties to intervene appropriately to assist the parties in their negotiations.

First, the mediator acts as a facilitator of conversations between parties that empowers them to share their stories of what happened and what they made it mean. The goal of these conversations is to reach a shared understanding about what really matters and not a debate about fault and blame.

Second, the mediator observes the play of emotions in the negotiations and steers the conversation away from fault and blame. Like a hockey referee they blow the offside and help the parties manage the emotions that so often accompany a conflict. They take breaks and help the parties to re-focus and return to effective negotiations.

Third, at the appropriate time and in the right circumstances a mediator acts as an evaluator of the positions that parties or their lawyers take in the negotiation. They provide a reality check about the legal and practical attachments to the past that are the roadblocks and barriers to a resolution. 

Mediation is a voluntary process. The power to intervene effectively is granted by the party’s express agreement and commitment to their process. The right balance between these three roles coupled with clear expectations and practical logistics will greatly enhance the success of a mediation.

Mediation is something that is done with the parties not to them or even for them. When conflict goes from an insurmountable task to a mere hurdle to overcome, life simply works better.

For more information about the design of your mediation please contact us at: david@davidgouldmediation.com

Your questions and comments are welcome and appreciated.

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David Gould (LLB, QC, C Med) has helped hundreds of lawyers and their clients – business and government organizations, and individuals – in conflict situations to co-create solutions for the future. For more information, contact: david@davidgouldmediation.com or visit www.davidgouldmediation.com

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