There is an ongoing conversation between practitioners about what it means to participate in mediation. Some practitioners feel strongly that disputants must put a certain amount of effort and time into the process, whereas others do not have any parameters they feel necessary to enforce.
In this blog post, we will explore what participation in mediation means and what are some standards and guidelines that many mediators adhere to.
Butts in seats
Some mediators measure participation in mediation as “butts in seats”. This means that if the parties show up, they are deemed to have participated.
Mediators who feel uncomfortable with the standard suggest that merely having “a butt in a seat” should not qualify as participation. Mediators who are of this opinion may feel that there needs to be dialogue and an effort to negotiate and understand one another to constitute participation.
Number of meetings
Some mediators feel that participation in mediation can be measured through the number of meetings attended. These mediators may feel that there needs to be at least one meeting per issue between the parties. Thus, if a family is going through mediation related to separation and divorce, the mediator may feel that the parties need to attend a meeting to negotiate parenting time, a meeting to negotiate property division, and a meeting to negotiate support. If the parties do not attend a meeting for each topic, the mediator may feel that they have not fully participated in mediation.
Other mediators feel that attendance at one meeting, no matter how many undiscussed topics there might be between the parties, should be considered participation in mediation.
Type of Mediation
Some mediators feel that to view parties as having participated in mediation they must participate in a specific type of mediation, such as a facilitative or understanding-based model.
There are many different types of mediation, and a mediator or other dispute resolution practitioner may suggest a certain type or style of mediation because it has been deemed as most appropriate for the situation. For example, some parties who have a history of interpersonal violence may need to resolve disputes through mediation, but it is most appropriate to engage in a shuttle negotiation style of mediation to help ensure safety throughout the process.
Whereas some mediators may fully consider a shuttle negotiation to have been participation in mediation, other mediators do not agree and feel that it is not participation in mediation, but rather participation in negotiation.
Location
Some mediators feel that parties must be physically in the same location for participation in mediation to have occurred. Other mediators feel that parties may attend by phone, via video conferencing, or in some hybrid manner and that is a perfectly acceptable standard for participation in mediation.
One Side
In some situations, mediation is initiated, however, only one side is communicative and only one side ever attends an intake or even the joint session.
Some mediators may consider the party who was communicative, had an intake meeting, and may have even showed up for a joint session to have been participatory, but deem that the other party did not participate.
Other mediators, no matter what the efforts of one party, do not feel that it constitutes a suitable standard for participation
Good Faith
Good faith refers to the intentionality of the parties who are going through the mediation process. Some mediators feel that to consider parties having participated they must be negotiating in good faith, disclosing and being respectful, and attempting to move the discussions forward toward a resolution.
Other mediators do not feel intention during the mediation process is as important as having participated. If both parties attended the joint mediation session, even if one was not negotiating in good faith, the mediator may view the parties as having participated in mediation.
Well, it depends…
Some mediators do not hold static parameters regarding participation but rather consider each file on its specific fact pattern.
For example, a mediator may conduct a mediation wherein they deemed the parties participated simply by having their “butts in the seats”, and in another mediation, only deemed that the parties participated if they were actively participating and negotiating in good faith.
Even the term “actively participating” is subject to interpretation. One mediator may feel “actively participating” means offering proposals and asking questions, whereas another mediator may feel “actively participating” is simply listening to the other side’s perspective, without making any proposal or asking questions.
Conclusion
As you’ve likely gleaned from this post, how a mediator determines if parties have participated in mediation is nuanced and mediators have many differing opinions.
If you are a beginning or seasoned mediator and have this wonderment, be encouraged to ask your mentors what their views about participation in mediation are.
Important things to consider when you are assessing participation are:
- No two situations are the same; do not judge one mediation against another.
- The Principle of Self-Determination; if the parties do not want to continue and they feel they have participated in mediation, it is helpful and important to acknowledge and respect their perspective.
- Withhold your own preferences; if you prefer to hold your mediations to a specific standard, remember that it is a preference, not a shared expectation. If you only want to work with parties who follow the process as you view it, make sure that is communicated to the parties before they engage you as their mediator.
- Allow for a graceful exit; in some situations, parties may want to be viewed as having participated in mediation, even if they have not participated as well as they may be capable of. It is often helpful to allow parties to leave mediation to pursue other methods of resolution. Encourage them that you are available again in the future if they wish to try again. You may be surprised how many of these types of files find their way back to you!
If you have more questions about how to determine if parties have participated in mediation, pop onto one of our monthly Mediation Practice Group video calls, and let’s have a discussion! We’d love to hear from you!
For more information and to register for Mediation Practice Group, click here.
