How should I present my case and conduct myself as a party in a mediation?

Attendance at a mediation is a totally different position than the attendance at a court hearing.  You as a participant are part of the decision making process.  In court the decision making is taken away from you and handed to the judicial officer hearing the trial.

What can you do and how should you conduct yourself to gain the best advantage and bring about a resolution of the issues in a mediation which acknowledges you as part of the process?

There are some rules to observe to maximise your mediation process:

  1. Listen to what the other party is saying and explaining. Do not interrupt the other party.  Allow enough time to listen to the arguments and do not criticise what the other party is saying.
  2. Ask questions of the other party that will elicit a response. Perhaps repeat these questions in a slightly different format if no response is received or it does not appear that the other party has understood your question.
  3. Do not blame the other party for the problems that brought you to the mediation but instead pin the cause of the problems on other external factors that have nothing to do with the conduct of the other party.
  4. Explain carefully the basis of your proposal and then and only then make the proposal. Do not do this in reverse or the other party will focus on the proposal and not listen to your explanation.
  5. Do not criticise or trivialise the proposals of the other party. Take the proposals on board in a civilised manner.
  6. Respond to the other side’s proposal by making sure that you are commenting in some way on what the other party requires. This may ensure that the other party will listen to what you have to offer.  The other party will feel valued and that is important.
  7. By now each party has placed on the table the proposals for consideration. In order to move forward the time has arrived for each party to now modify the initial position taken.  You are negotiating.  You have agreed to attend mediation so that you can negotiate.
  8. How best to negotiate? Try placing alternative positions in the proposals.  This will signal options and flexibility.
  9. When you refer to the other party it is essential that you acknowledge that party by name. Make sure that you do not refer to that party as the husband, wife, applicant, respondent.
  10. Remember that the umpire in this process is the mediator and he or she must control the process. The mediator will call for a pre mediation conference either by telephone or in person to enable the mediator to determine if a mediation is viable and the parties are prepared to demonstrate flexibility to resolve the issues.  The mediator will also be able to understand the needs and concerns of the parties.
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