What Are 2 Basic Requirements for Mediation?

{2:48 minutes to read}

Taking it down to the bare bones, I believe there are really only two essential elements that need to be present in order for a mediation to be viable and ultimately productive.

Willingness to Dialogue

Certainly there needs to be a basic willingness to come together and talk to each other. This does not, however, mean that the participants:

  • Need to have the same degree of commitment to dialogue; or
  • Feel comfortable speaking with the other.

In the most ideal situation, both participants would be equally ready and open to dialogue in mediation. But as you can imagine, that’s not always the case. There’s often one participant who is more reticent, or even skeptical, of the process. And that’s okay. If that person has made it to my office, they are at least in the game.

Then it’s a matter of my using my experience and skills as a mediator to facilitate productive conversations between the two of them. By the end of our mediation sessions, the couple’s ability to get along and speak respectfully and constructively to each other will likely have improved significantly.

Full Disclosure

The term full disclosure may sound very legal, but simply put, it means that all of the information that needs to be furnished during the mediation is provided by each of the parties.

There is a fundamental reason for this requirement: A person cannot make a knowledgeable and informed decision if he or she does not have all of the information that relates to the subject being addressed.

It is the mediator’s responsibility to make sure that all of the relevant information has been furnished so that the parties can make their informed decisions. The mediator needs to stringently enforce this principle. Otherwise the very foundation of the mediation process would be compromised.

For example, I’ve had a handful of cases over the years in which it became obvious that one of the parties was unwilling to share essential financial information related to their earned income, investment or retirement accounts. If that party continues to withhold the requisite information, the mediation cannot proceed.

Two seemingly simple principles – communication and full disclosure – yet both are crucial to a successful mediation.

2 responses on “What Are 2 Basic Requirements for Mediation?

  1. Gillian Brady

    As usual, Susan, I agree with everything you have said here!

    One thing I have found helpful in getting the parties to come to the table is a thorough explanation of the benefits of mediation versus a more adversarial approach. I spend at least an hour with clients without charging anything, just explaining the process so they can make an informed decision about mediation itself. I find that also helps if things get difficult and we need to go back and recall why mediation was chosen over other alternatives in the first place.

    Thanks for the articles!

    Gillian

  2. Virginia Colin

    Refusal to make full disclosure is far from ideal, but the party at risk (due to lack of information) may decide to continue mediation anyway. I have had divorce cases in which one spouse thought the other spouse was hiding significant amounts of money by leaving sums in the care of relatives in other countries. The suspicious spouse could spend a fortune on lawyers and forensic accountants to try to track the money down, or they could make a partially-informed guess about how much had been hidden or wasted and base their willingness to reach a settlement on that. Resolving the matter now, not later, has value for many clients. We can write agreements that include how the parties will handle it if previously undisclosed assets are discovered.

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