Why Mediation?

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Mediation Ends Ambiguity

Last fall, over three successive months, four friends (who happen to be attorneys) encouraged me to look into Rule 31 Mediation education.

Mediation Works

A lifetime learner, I began my research with Google, which listed T.S. Oliver’s article, “Understanding Tennessee Rule 31” which begins:

We are lucky to live in Tennessee, where the State Supreme Court provides guidance for Alternative Dispute Resolution. We are even more fortunate that our state has a strong provision for mediation–a way for disputing parties to settle their conflict out of court in a way that passes legal muster and has staying power.

First, Rule 31 defines mediation as “an informal process in which a neutral person conducts discussions among disputing parties designed to enable them to reach a mutually acceptable agreement among themselves on all or any part of the issues in dispute” (Section 2 (i)).

From an outcomes-based point of view, Rule 31 is a “next level” tool for workplace conflict issues, with an affinity to my own core leadership offering, Integrity-Based Communications (also the title of my book).

Paying attention – and inspired – I took the first class available this year, offered in Memphis by Stephen Shields, who directs the Mediation Clinic at the University of Memphis Law School. Mr. Shield’s Rule 31 Mediation classes are small, by design. In addition, the 40 classroom hours were spread over two weeks, offering a more effective learning environment. The biggest bonus was that everyone in the class was able to role-play a mediation scenario, modified from actual cases. Each of us learned from watching and debriefing the others’ experiences.

Earlier in my life, I had been involved with mediation that “didn’t work.” Knowing what I do now, it was because the other party solidly lived in the “I will win, whatever the cost” frame of mind.

These days, with most cases taking two to three years before going trial, many civil judges are requiring mediation in advance of the trial.

Principles of Mediation

Mediation is based on three important principles, which are explained to the parties at the beginning of the session:

1.    Confidentiality – both in the process of discussions with each party, and as negotiations proceed, each will have their turns to discuss all of the elements that are important for them to achieve by the end of the day. Permission must be given for information to be shared with the opposing party as negotiations proceed.

As T.S. Oliver states it:

These include standards such as maintaining confidentiality of all dispute resolution proceedings except where required by law to disclose, maintaining impartiality and promoting a balanced process and ultimately assisting the parties in reaching an informed and voluntary settlement.

2.    Impartiality – The Mediator is neither an ally nor an advocate to the parties. Whether or not the Mediator is an attorney, their role is not to give legal advice, even if the parties are not represented attorneys. The Mediator’s sole role is to help both parties arrive at a solution that is agreeable to each of them.

You will find this on the website Rule 31: Alternative Dispute Resolution. | Tennessee Administrative … https://www.tncourts.gov/rules/supreme-court/31

 (r) A “Rule 31 Neutral” is any person who acts as a Neutral in a Mediation, Case Evaluation, Mini-Trial, Non-Binding Arbitration, Summary Jury Trial, or any other similar proceeding initiated by the court pursuant to this Rule. Rule 31 Neutrals, other than Rule 31 Mediators, are required to be licensed attorneys.

3.    Self-determination – The greatest benefit of the mediation process is that two parties hold the power to decide the outcome of their case. This relieves the stress of an ongoing wait for trial. At the end of the day, all parties know the outcome of their negotiation. They avoid the expense of trial, plus the anxiety of an uncertain outcome. They can move on with their lives.

T.S. Oliver adds:

What really makes Tennessee’s mediation law powerful is that it gets to the heart of what conflict resolution really is. In doing so, it requires that the mediation process be guided by the parties involved. If the parties mutually create and agree upon the terms of a resolution to their problem, it is very unlikely that they will be back in conflict anytime soon. It is then the mediator’s job to make sure that the terms of the resolution pass legal muster. That means that each mediation results in a contract (not disclosed to the court) and that this contract be a binding agreement, keeping the parties out of court again.

Practicing Mediation

To mediate cases referred by a court in Tennessee, the mediator, or Neutral, must be Tennessee Supreme Court Rule 31 Listed and in turn adhere to the standards set forth in TSC Rule 31.

My next step is to shadow Stephen Shields on an upcoming “Mediation Day” in court. I hope to be involved as Memphis establishes a Community Mediation Center. Immediately, I have begun to use the new skills I have acquired in serving existing clients, apart from legal issues.

If you are interested in learning more about Mediation as a way to serve your existing clients – or as an entirely new career – visit Become a Rule 31 Mediator | Tennessee Administrative Office of the … https://www.tncourts.gov › Programs › Mediation

Stephen Shields’s next Rule 31 Mediation class will be announced on his website at www.adrinst.com.

For more information, visit http://www.jsylawfirm.com/attorneys/stephen-l-shields/ or Stephen L. Shields, JD, LLM – Alternative Dispute Resolution Institute

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