Advanced Business Policy, OD and ADR
any party to the mediation, the mediator does not usurp the parties’ rights to disclose, or not disclose information. The mediator preserves the integrity of the proceedings in all ways.
Generally this means things - such as there are no records kept by the mediator. When there are no record, it becomes much harder to breach confidentiality or to try to use the mediator to prove or force a particular point not finalized in the parties agreement. In fact, some ADR groups and centers require the parties to take all notes on provided paper and then take and destroy even the notes after each session.
Confidentiality also means that the facilitator is not subject to subpoena and thus cannot be made a witness. Without notes or the facilitator, the only method to breach confidentiality is the testimony of an interested party who is usually bound by law (and thus subject to being quashed) not to disclose more than is agreed.
3. Good faith from the participants
Good faith includes not only entering into the ADR method with the intent to work towards a resolution, it also includes not using the process for outside purposes. Thus there are rules that provide for no service of process during ADR, and for similar bars to the abuse of the mediation process by attorney and non-attorneys alike.
What makes all of the proceedings mediation is that the parties are in the process to seek solutions rather than for an ulterior purpose (e.g. to abuse the other party by use of the process). Both the behavior and integrity of the neutral are important in creating, and preserving good faith.
4. The presence of the parties
Those with full authority to act for the parties must attend so that the parties can work toward resolution. If the decision makers do not attend the process becomes something other than mediation.
All parties necessary to resolve the problems should interact with the mediator. In a family dispute, if a party always checks with his parents before acting, the parents should attend (and may need a referral to additional counseling). In a labor matter, if a company chief executive checks with the majority shareholder, the majority shareholder should attend.
It is the parties who are being resolved as much as it is the problem that is being settled.
5. An appropriate site or venue
Generally this means a neutral site that is conducive to the process. It must mean a place where neutrality, confidentiality and inclusiveness may be obtained. The place is some times as important as the persons and is a part of the process often overlooked.
4.3 Negotiation
Negotiation is a less structured form of Alternative Dispute Resolution (ADR). The facilitator’s role is to keep the parties talking and bargaining. The parties may be individual or teams. The facilitator keeps record of party positions, and points of agreement they reach as discussions proceed.
The process can be lengthy, as in labor or sports negotiation. The facilitator will prepare a memorandum [next page]