How to Conclude a Mediation Session
 
 
Mediation Ending Process
Introduction

When the mediation has ended, the mediator will often offer a closing statement. At this time, you will generally thank the parties for their time and effort in making the mediation successful. It may be a good idea to point out some of the more positive aspects of each party's involvement and show how those behaviors all came together to reach a positive resolution. There may be a few more steps to take in order to finish the mediation process, however, and each helps make the entire process more effective.

Objectives

In this article, you will learn what the follow up tasks that a mediator may need to complete after mediation has taken place.

  • What follow up tasks should be taken in order to ensure the mediation agreement is complete?
  • What is a mediator debriefing, and why is it important?
  • What if the mediation is unsuccessful?

The Agreement

In many cases, the agreement can be drawn up on the same day as the mediation takes place. Both parties will be able to look it over and sign it before leaving the venue. In some cases, however, the agreement will need to be reviewed and ratified. Sometimes the parties will want to have the agreement reviewed by their attorneys, for example. There is nothing wrong with this type of follow up activity, but it can sometimes cause a few problems.

First, the lawyer may not be an expert in mediation, and he or she may therefore not be entirely comfortable with the outcome of the agreement. There are certainly cases of an attorney undermining the success of mediation simply because he or she does not clearly understand how the process works. It may be beneficial to have the parties meet with a lawyer who is familiar with the mediation process.

It is possible that an outside group must review and ratify the agreement too. This can protect both the parties involved in the dispute, as well as the mediator. Professional advisors can help ensure that the items agreed to are realistic and beneficial. For example, it may be beneficial to have an accountant look over any settlement numbers where agreement was reached.

It may also be the case that the agreement needs to be submitted to the courts. Not only will they review it, but also sometimes, the courts will make revisions based upon the law and the practicality of the decisions made during the mediation. Any of these types of changes may require the parties to return to revamp the agreement or to work through new conflicts that arise.

Continuing Mediation or Referrals

While the statistics show that 80-90 percent of mediations are successful, it is not unheard of for more conflicts to arise after the initial mediation has taken place. Sometimes these may be over major issues, and other times they may just require a bit of "tweaking" of the original agreement. It is advisable for the parties to return to mediation to build on the success they already created in their previous mediation.

The mediator may also determine that one or both of the parties can benefit from other professional help. To be of assistance in this capacity, he or she may refer the parties to psychologists to help with emotional issues, to social workers who can help get services, or to a variety of other professionals who can guide the parties in fulfilling their agreements.

Mediator Debriefing

Mediations can be extremely emotional experiences for all involved. Some of the topics covered are quite unpleasant, and so too are the attitudes of some of the parties seeking mediation. Some mediation practices require that a debriefing follow each mediation. This will often take place between two mediators, one who was involved in the case, and one who was not. The one who was not involved in the case encourages the other to evaluate the process and to reflect on how it was handled.

There are multiple purposes to taking part in a post mediation debriefing. First, it offers the mediator an opportunity to learn from the experience. He or she can determine what went well and what did not so that those realizations can be used in later mediations. In addition, it gives the mediator the chance to discuss how the case made him or her feel and to deal with any lingering emotions tied to what took place during the process. A mediator must remain neutral, but it can be helpful to face these feelings once the case is over. Finally, the parties may not be the only ones who need closure after such an intense experience. A debriefing can offer the mediator a chance to let the case go.
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If Mediation Doesn't Work

While mediation has been determined to be a very successful tool for dealing with conflict and disputes, there are times when it simply does not work. Perhaps the parties are just too angry to find any common ground, or maybe the legal implications of the situation are too overwhelming for the mediation process to untangle them. In those cases, it is good to note that attempting mediation does not diminish your ability to utilize the court system later.

If the parties do decide to take their conflict to court after mediation has failed, they will need to meet with their lawyers to determine if there are any limitations that have been created by the mediation process. For example, the confidential nature of mediation may require certain details not to be revealed. Overall, this is the type of information that should be sought from trained legal counsel.
Mediation and Confidentiality
Introduction

Confidentiality is an important issue in mediation. Many of the topics under discussion are very personal and sensitive, and the best mediators are those who keep information private from the press, outside parties, or even between parties, if requested.

Yet, it is not only the protection of the complainant and respondent that is a concern when it comes to the particulars of the case. Mediators also need to keep confidentiality in mind for their own protection. That is because although the fact that mediation exists outside formal legal channels means that it is a quicker and more efficient solution for settling disputes, it does not carry the inherent protection that comes with a court of law.

Objectives

In this article, you will learn what it means for mediation to be kept confidential.

  • What can a mediator do to maintain confidentiality?
  • Who is responsible for confidentiality?
  • Why is confidentiality important?
  • What are the exceptions to mediation confidentiality?
  • What can a mediator do if confidentiality is breached?

Why Confidentiality is Important

Many people actually choose mediation (as opposed to another form of dispute settlement) because of its promises of confidentiality. Court cases are typically open to the public and the press, and records are kept of all the proceedings. Mediations usually involve only those present, and it can be easier to "keep things quiet" when only a few concerned individuals are part of the process.

This is not to say that mediation is 100 percent confidential, however. Whenever you are dealing with people, there is always a chance that information might slip out or be shared with loved ones and friends. And unless there is a formal written agreement specifying otherwise, this kind of "slip" is not necessarily an offense punishable by law.

There is also a matter of safety to consider. For example, if allegations of abuse or illegal activity arise during the proceedings, the mediator may be compelled to disclose the information to the authorities, particularly if an individual's safety is at stake.

Despite these types of situations, confidentiality is still one of the factors that make mediation so much more attractive to the parties than going to court. That is because when it comes to private lives and minor disputes, a lack of public scrutiny is often what makes mediation such a great choice.

  • Confidentiality means that both the complainant and the respondent will feel more comfortable discussing sensitive topics and emotions.
  • Confidentiality allows mediation to be more effective than legal proceedings, since all the parties know that they will not be misquoted or misrepresented to authorities or the press.
  • Confidentiality reinforces impartiality on the part of the mediator, who might feel pressured to act one way or another if he or she knew that the case was going public.
  • Confidentiality gives the parties less incentive to seek a change in the mediation's outcome, since any "appeal" or additional mediation decreases the chance of maintaining confidentiality in the first place.

How to Maintain Confidentiality

To maintain confidentiality, all parties must agree, and adhere, to certain best practices. This does not have to be formalized with a written agreement, although it can be done if the parties insist upon it.

These "best practices" are not as formal as one might think. In fact, they include the same kind of lip sealing promises that often occur between friends and acquaintances, although with a little more formality and a little more at stake (after all, a mediator known for breaching confidentiality is a mediator who does not get repeat business). It might help to go over these "rules" with the complainant and respondent before the mediation case gets started.

  • Do not discuss the details of the case or the parties with anyone not involved in the mediation.
  • Do not threaten or otherwise use information against another party.
  • Do not use information for personal gain, either financial or otherwise.
  • Keep all written accounts and contracts in a secure location.
  • Respect the privacy of everyone present.
Despite these best practices, it is important to note that in many cases, confidentiality must be breached for the safety of the individual. Any written agreement should, therefore, make allowances for the following.
  • Confidentiality that has been waived by all parties, and any information that relates to the planning, attempt, successful accomplishment, or concealment of a crime.
  • Threats of violence.
  • Abuse toward children, the mentally impaired, or the elderly.
  • Information that might be relevant to an actual court case.
It is also important to ensure that the complainant and respondent understand that as a mediator, you are not acting as an attorney, a legal advisor, or are otherwise subject to requisite professional confidentiality. The parties (and their legal counsel, if in attendance) are ultimately in charge of understanding and installing their own measures of confidentiality, as needed.

What to Do if Confidentiality is Breached

Unless the mediator is the one responsible for the breach in confidentiality, there is very little he or she can do in the event that someone acts against the agreement, whether it is written or oral.

In reality, the law behind confidentiality in mediation is minor, and the penalty for breaching confidentiality depends primarily on the written agreement signed by both parties. In the event that there is no agreement, confidentiality deals primarily only with the law.

For example, although all states differ, most of them consider confidentiality in mediation to mean that the parties cannot use information as evidence in a later court case or be compelled to offer the information during a legal interrogation. In the event that this does happen, the party who wrongfully disclosed the information may be held liable for all the fees and damages associated with the breach. As a whole, this means that confidentiality has more to do with the legal process and less to do with what the parties say to friends and family.

Unless there is a written agreement specifying otherwise, confidentiality in mediation is more about being respectful than anything else. As the mediator, if a party who claims the other party has breached confidentiality approaches you, it is best to supply him or her with a copy of the agreement and contact information for legal counsel.
 
 
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