When conflict or discord threatens to sabotage professional (or corporate) relationships, mediation can be an effective way both to address the immediate situation and to help preserve prospects for good relations in the future.
When disputes are in (or may end up in) litigation or arbitration, mediation can provide a less adversarial, less costly, and more comprehensive process for arriving at an individually crafted solution in which all parties have a voice
The Understanding-Based Model of Mediation
In this approach to mediation, the mediator works directly and simultaneously with you and the other party/parties—and with your counsel, when present—to address matters in ways that respect your differing perspectives, needs, interests, and goals.
The mediator actively supports the parties’ own efforts to understand and articulate the issues underlying the situation. This understanding then becomes the basis for developing creative solutions that build on what you and the other party/parties view as important.
Working in this model enables the parties to:
• Increase control over resolution of the dispute
• Recognize your underlying interests, aspirations, and goals
• Develop effective modes of communication
• Honor your relationship
• Become fully informed of relevant law
• Address barriers to collaborative problem-solving
• Develop creative solutions to the matters in dispute
Resolution through understanding
At the core of this approach to mediation is the opportunity for you and the other party/parties to develop a comprehensive understanding of the essential elements you need to consider in order to reach a resolution that works well for each of you. The goal is not to sacrifice one party’s needs for those of another, but to find ways to address what is important to each of you.
With all parties present, the mediator guides discussion so that each of you can fully express your respective views and, at the same time, have an opportunity to hear one another’s views. By gaining a fuller understanding of each person’s perspective, including your own, you can have a better basis for developing creative solutions that build on what each of you considers important.
This mediation process is completely voluntary; each of you retains the option to withdraw at any time. Early in the process, you and the other party/parties (and the attorneys, if present) explore with the mediator whether it makes sense to proceed with mediation, rather than an alternative process (such as litigation or arbitration), and whether the mediator is well suited to each of you and to the situation you are addressing. These questions can be revisited at any point in the mediation if concerns should arise.
The parties as primary decision makers
Some models of mediation are based on the belief that the mediator should take the lead in developing a settlement and then promote it to each party. Or that counsel for the parties should be at the forefront of discussions, while the parties remain in the background, allowing their respective attorneys to speak for them.
While attorneys can play an active role in the Understanding-Based approach to mediation, our view is that it is the parties themselves who are best able to understand and address what underlies the conflict and, therefore, are best able to find a solution.
To that end, the mediation process is designed to assist the efforts of each of you to make informed decisions regarding both the outcome of the mediation and how you wish to proceed at each step along the way.
Proceeding by agreement
This approach to mediation calls for you and the other party/parties to make decisions only by mutual agreement. This includes decisions about how to proceed during the course of the mediation. Early on, for example, the mediator, you, and the other party/parties (including counsel, if present) work together to set out guidelines addressing matters such as confidentiality, communication, sharing information, and any other concerns that are raised. These guidelines can be modified at any point in the mediation process, provided all participants agree to the changes.
Because this approach to mediation emphasizes the parties’ primacy as decision makers, it is important for the mediator to work directly and simultaneously with all parties as much as possible. In other words, there is a strong preference not to hold separate sessions (to caucus) with any party apart form the other(s).
A significant drawback to caucusing is that it tends to give the mediator greater access to information than either you or the other party/parties will have. Because it is you and the other party/parties—not the mediator—who will decide whether and how to resolve matters, you are the ones who need a full understanding of the situation. We believe that understanding is most likely to develop when you are able to hear directly from one another throughout the entire mediation process.
Meeting together may mean there are times in a mediation session when conversation becomes emotionally charged—even intensely so. If managed skillfully, intense emotion is not necessarily a destructive element; it can bring insight into what is most important to each of you. The mediator can help you and the other party/parties find ways to communicate effectively and productively.
Developing options for resolution
Once you and the other party/parties feel you have expressed yourselves fully and that the mediator has a good understanding of the issues and your respective views on matters, the mediator will help you generate and explore a variety of options that might address important interests and goals of all concerned. Here, the mediator’s relevant background in the arts or in intellectual property matters can be a resource for you to draw upon, expanding the range of ideas from which to craft a mutually beneficial resolution.
Learning about the law
If you or the other party/parties are considering litigation or arbitration of the matters in dispute, the mediator can help guide discussion of the relevant legal issues, provided each of you—and the attorneys—are willing. The purpose is not to impose a legal solution; it is to provide an opportunity to educate each of you about legal aspects of the situation you are trying to address.
This discussion can help you identify strengths and weaknesses of your respective cases and give you a more realistic basis for assessing the possible outcomes of litigation or arbitration. You can also explore the impact that these proceedings might have on, for example, professional or personal relationships, reputation, finances, or time concerns.
You are then in a better position to determine whether mediation is likely to serve your interests better than the alternatives would.
Understanding relevant law can also serve as a useful guide at the point you are ready to develop ideas for reaching resolution. However, you are not obliged to consider the law, nor do you have to limit your thinking to what the law might prescribe.
In conducting a discussion of the law, a mediator usually looks to the attorneys to play an active role. If legal counsel are not present, the mediator may encourage you and the other party/parties to consult attorneys. Or the mediator may consult outside counsel, mutually agreed upon by each of you, to act as a legal resource. In any case, it is important that you and the other party/parties also participate in the conversation, so that you can have a firsthand understanding of the matters discussed. After all, you are the ones who will be directly affected by, and will ultimately determine, the outcome.
The Understanding-Based approach to mediation was developed by The Center for Understanding in Conflict, a national nonprofit educational institute. The Center regularly conducts a Mediation Intensive course, ongoing support groups, peer groups, and advanced training programs for lawyers and other conflict professionals.
Members of Arts Mediation Group are independent practitioners who set their own fees within the following ranges:
Standard commercial rates:
$300 – $400 per hour
Reduced rates for artists / artisans and smaller nonprofit organizations:
$150 – $250 per hour
Fees apply to mediation sessions and to any related work performed by the mediator outside those sessions, for example, to research legal issues, prepare written summaries of discussions, or draft agreements.
The parties are also responsible for the mediator’s out-of-pocket expenses (eg, postage, travel, photocopying). Any unusual expense, such as translation, will be discussed in advance with the parties.
The method of payment and the way in which parties share costs are discussed and determined at or before the initial meeting with the mediator.