Mediation Survivor's Handbook
By Peg Nichols
Summary written by Hollie Hendrikson, Conflict Research Consortium
Citation: Nichols, Peg. Mediation Survivor's Handbook. Olathe, KS: Weir Box Publishing, 2006.
Mediation Survivor's Handbook is a practical guide for mediation offering simple tools for inexperienced individuals to become informed of the mediation process. Peg Nichols makes this book accessible to any reader and is intended for potential mediation clients or those considering becoming mediators. In the introductory chapter, Nichols clarifies the definition of mediation, and encourages the use of mediation in everyday conflict.
Nuts and Bolts
In the second chapter, Nichols creates a "Roadmap for Mediation" by defining specific concepts and issues of mediation. These are:
- Self-Determination: According to Nichols, self-determination is the single most important aspect of mediation and includes the voluntary agreement from both parties to participate. "To reach a Mediation Agreement, all of the parties have to voluntarily agree. No one can be forced to agree either by the other parties or by a judge or by a mediator" (8). Self-determination is the key difference between mediation and other methods of alternative dispute resolution.
- Conflicts of Interest: To avoid conflicts of interest, mediators should never have an interest in the outcome or a favored relationship with an involved party. Individuals with previous knowledge of a conflict must not favor an outcome.
- Confidentiality: Laws regarding confidentiality during the process of mediation vary greatly from state to state. Before beginning, the client should ask the mediator to clarify the rules of confidentiality.
- Quality of the Process: Nichols describes aspects of the mediation process to ensure fairness and impartiality. These include: the establishment of rules, effective use of caucuses, little outside distraction, and forward momentum of discussion.
- Fees and Payments: Prices of mediation can range from no or low cost mediation, at community or county mediation centers, to higher costs ($75-$150/hour) for private mediation. Regardless of the price, Nichols stresses the importance of dividing the payment of mediation between the parties before the mediation occurs.
- Finding a Mediator: Nichols provides possible methods of obtaining a mediator. Information on public mediators can be acquired through state or local governments. In the Advertising and Solicitations section of the chapter, Nichols also recommends looking on the Internet, through telephone books, or contacting local commissions to find competent mediators.
Additional information for individuals wishing to become good mediators:
- Mediator Impartiality: This concept advises the mediator to "Treat each party equally; maintain civility and balance; and listen as attentively to one party as to the other" (11). Impartiality is stressed even in small, seemingly unnoticeable details such as seating arrangements, gender balance, and small talk during the process.
- Confidentiality: Information shared during mediation will remain confidential unless the parties agree otherwise. During judge-ordered mediation, the specifics of the process will not be revealed, but the resolution or final agreement will be presented. Exceptions for the rule of confidentiality are: information about abuse of children, elders, or handicapped persons, and crimes committed or intended to commit.
A short written document establishing rules and regulations for both parties, referred to as an "Agreement to Mediate," is an important preliminary step recommended by Nichols. This agreement may include the subject/topic to be discussed, the appropriate use of lawyers or outside information, or the division of payments.
Types of Mediation
The remainder of the chapters describes different situations in which mediation is used, and outlines important issues for each situation.
Mediation Not Litigation
Nichols recommends becoming familiar with the legal process by sitting in on local courthouse proceedings, or exploring the different avenues of alternative dispute resolution. These include: negotiation, arbitration, reconciliation, facilitation, neutral evaluation, settlement conference, family-circle conferencing, or administrative law (71).
Finishing the book, Nichols provides "Guide-Posts for Mediation Survival." These guideposts are simple instructions for both the mediator and the parties involved, and emphasize the self-determination of those participating.
Mediation Survivor's Handbook is a useful introductory guide for people considering mediation or becoming mediators. It might have been stronger if the information for mediators and for clients were in different sections, but due to the amount of overlapping material, Nichols chose to combine these two aspects of the book, which some readers might find confusing.
- Divorce: During the emotional process of a divorce, mediation may not be seen as a viable option, but the other option is having "a judge, who knows youâÃƒÆ’Ã¢â‚¬Å¡ÃƒÂ¢Ã¢â‚¬Å¡Ã‚Â¬¦only as names on a case file, [make] decisions and [sign] orders that will govern major areas of your life" (51). A divorce including children complicates the process, but Nichols emphasizes the need to put kids first. A financial questionnaire is often utilized to determine each parent's financial contribution to the child. Issues including living arrangements for the weekends versus the weekdays, holidays, or birthdays needs to be discussed and agreed upon during mediation. Before taking agreements before a judge, a lawyer should review them.
- Mediation After a Crime: Often referred to as restorative justice, victim/ offender mediation can be extremely healing for both parties. After a crime has been committed, the ability to reconcile differences or make amends provides a sense of closure for both the victim and the offender. During mediation, the victim has total control over the situation (from deciding on a location to stopping the mediation). However, the offender can refuse to participate. The victim may ask for reparations, but needs to be practical. The offender is not required to apologize, but will be expected to offer an explanation and rationale of the crime.
- Mediation and Kids: School mediation programs, also called peer mediation programs, are functioning at all levels of school. The purpose of school mediation is to have each party retell their version of the story in a neutral environment. A mediator then suggests ideas for agreement. Mediation teaches kids that "having the chance to work out mutual resolution produces a better outcome than enduring punishment" (81).
- Probate Mediation: This relatively new form of mediation includes a neutral third party to make the emotional process of "adhering to the wishes of the departed" easier on the parties involved (85).