This is the second article in a four-part series on alternative dispute resolution. Read the first article in the series in the December 2007 issue of The Nurse Practitioner.

Mediation is the most common form of alternative dispute resolution. In mediation, an impartial third party, also known as a 'neutral', trained in mediation skills will help the disputing parties negotiate and arrive at a resolution agreeable to all.

There are very few rules that control mediation, which usually takes place in an informal setting. The outcome is determined by the parties, not the third-party neutral. The mediator assists in communication between and among the parties, and helps them to clarify issues, identify interests, and create options for resolution. Mediation is also often referred to as a "settlement conference."

[black small square] When to Use Mediation

Mediation is especially valuable when a continuing relationship between the parties is desirable or necessary, such as employer-employee disputes and business disagreements. During mediation, the parties have the opportunity to solve the problem themselves and arrive at a mutually agreeable solution. However, no one can compel the parties to arrive at an agreement, so an agreement may not always be reached. For parties who desire a continuing relationship, the mediation model may serve as a basis to resolve both current and future disputes.

Mediation, however, is not useful in every situation. For instance, the model may not be effective when a party is unable to negotiate because of substance abuse, psychological impairment, physical or emotional abuse, ignorance, or when the interest is only motivated by revenge.

[black small square] Mediation and the Law

Mediation in anticipation of litigation has confidentiality provisions governed by statutes and the rules of civil procedure. Information discovered or statements made during mediation are not admissible in trial unless the information is available from a third source outside the mediation setting.

For example, imagine an NP is involved in a mediation with her employer, and the employer apologizes for her behavior and admits that the employee was treated badly, but refuses to come to an agreement about how to resolve the situation through mediation. If the dispute went to trial, the employer would not have to testify about what was said during the mediation unless there was another witness who heard the employer make this apology outside of the mediation process. Additionally, mediators cannot be subpoenaed to testify at trial regarding matters discussed or information discovered during a mediation.

[black small square] Mediation Styles

The best mediators are usually good listeners and creative thinkers. The goal of mediation is not to win, but to reach an agreement satisfactory to all parties in the dispute. There are no winners or losers in mediation. A mediation agreement is a compromise. One party expressing an apology for any harm suffered by the other party usually goes a long way towards reaching a mediation agreement.

A mediator may also explain why an offer is being increased or lowered, to alleviate suspicions or any feelings of unfairness.

There are several styles of mediation. One of the most common styles is the caucus in which, if it is feasible, all parties and their representatives initially meet with the mediator who will explain the rules and allow each party to make a statement. Before the parties come together, each side will present a confidential mediation statement explaining her side of the story, the basis for believing she is right, what the party would like to achieve, and any unique features that may help the mediator. This confidential statement is not normally given to any of the other parties, and the mediator does not disclose it to any other party without the writer's consent.

[black small square] BATNA

Prior to engaging in mediation, it is helpful for each party to formulate the best alternative to a negotiated agreement (BATNA).1

For example, if an NP has come to mediation to settle a certain salary, she could ask herself, "What will I do if by a certain time I do not have a job at that salary?" "Will I seek another job?" "Will I change careers?" "Will I agree to work overtime?" The answers to those questions would help her formulate a BATNA in mediation.

A BATNA allows the party greater leverage during negotiations by knowing there are alternatives to the other side's offers. Before a settlement is accepted, it should be measured against the BATNA.

[black small square] Tips When Facing a Mediation

As each party voices concerns, the chances of reaching an agreement usually improve. Empathetically listening to one another may also help open the door to a settlement. Mediation often gives parties the opportunity to think outside the box. Though mediations are frequently about money, many disputes cannot be settled unless issues other than money are addressed. For example, promises to take or to refrain from taking certain actions, or interest-based negotiation, are also effective.

The selection of the appropriate mediator is also important. A mediator should be experienced, credible, and nonbiased.

Remember to put yourself in the other side's shoes, so you can predict their next move and formulate your response accordingly. This allows you to have more control of the outcome.

Allowing the opposing side to save face is an important feature in successful mediations. Sometimes an acknowledgment of wrongdoing or an acknowledgment that harm has been caused may help diffuse anger and preserve dignity.

Finally, be realistic. Mediation is a settlement conference, not a forum to win or lose. Each side will have to give up something to gain an agreement and closure.

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