by Howard Thomas
Like many of the other small association AEs sitting in the mediation program at the April AE Institute, I had heard of mediation for member disputes, but I didn’t know much about it.
Then Lynn Cohn, director of the program on negotiation and mediation at Northwestern University School of Law, opened my eyes to a better way to settle my members’ disputes, one that can save relationships and reputations, as well as time and money.
From time to time REALTORS®, like people in any occupation, disagree. Disputes are inevitable if you are in the business for any length of time. Most disputes are resolved without any formal process. Sometimes, however, disputes escalate and more formal resolution processes are necessary.
AEs can play a significant role in helping their members resolve disputes before they require arbitration or litigation. The secret to success is to offer mediation as an option before more formal intervention is needed.
What mediation is, and what it is
With other methods of dispute resolution, such as arbitration and litigation, the focus is on fact-finding, which is accomplished through testimony and documents. In arbitration proceedings, the arbitrator, or hearing panel, considers the facts and then renders a final decision that binds the parties. The arbitration award is usually “all or nothing,” with a very clear winner and loser. With mediation, however, the focus is on resolving the conflict by looking at the parties’ true interests as opposed to only the facts and the parties’ initial positions. The disputing parties themselves control the outcome and their resolution can be as flexible and varied as the mediation process itself.
According to Cohn, mediation is a voluntary, private process in which a neutral party helps people resolve disputes. It’s getting two or more emotional people with a problem to talk with each other. It is not making decisions for disputants or a “free discovery” for an inevitable arbitration.
How mediation works
Mediation uses a neutral third party who acts as a facilitator to help the parties reach a mutually agreeable resolution to their dispute. The mediator is responsible for setting the tone of the discussions. He or she chooses the location, sees that the room is set up for productive discussion, explains and controls the process, and sets the ground rules. The mediator explains his role as a facilitator and reiterates that his goal is to help the parties resolve the dispute themselves.
For mediators, Cohn advises that they arrive “in the right frame of mind before talking with the participants in the dispute. Be calm, patient, drop your defenses and make time.” Rushing, she explained, may create unnecessary stress and negatively impact your ability to assist the parties resolve their dispute.
Next, make sure the participants understand the process and that mediation is an opportunity and not an obligation, says Cohn. Finally, explain that if no resolution is reached, parties still have the option to pursue arbitration.
During the mediation, the mediator asks each party to tell their side of the story, after which time they may ask each other questions. Often, the parties discover many new things during this portion of the mediation.
If the mediation conference results in a resolution, the agreement needs to be put in writing by the parties before the conference is concluded. Ideally, the parties written agreement should be in their own words and clearly describe the details, including relevant time frames. The agreement should focus on positive actions that will be taken prospectively (rather than placing blame or looking back retrospectively).
Mediation, a viable solution
Offering mediation is the responsibility of the AE. Talk about the mediation process and provide learning opportunities so that members are familiar with the process and its benefits and view it as a viable form of conflict resolution.
Board members seek our advice and counsel, and as AEs we owe our members our advice. Offering mediation as a process for conflict resolution before arbitration is needed can not only ensure better working relations with our members, but also help instill trust when we offer it as an alternative when disputes arise.
NAR offers a two-and-a-half-day-long mediator/mediation training each year for association staff and volunteers. For more information, contact Bernice Barajas at 312-329-8259 or firstname.lastname@example.org. Mediation Information Exchanges are held at NAR’s midyear and annual conferences.
Howard Thomas is AE of the 61-member Four Corners Board of REALTORS®, Colo. He can be reached at 970-565-0112 or email@example.com.
WHY MEDIATION WORKS
Most disputes are successfully resolved
Discovers/addresses the true interests of parties
Moves beyond different views of law/fact
Allows creative/flexible solutions beyond a monetary win/lose
Respect and civility are its cornerstones
Resolution is just as binding and enforceable as an arbitration award yet rarely is it necessary to go to court to enforce a mediated agreement