The A-Z of Mediation: Upholding the Agreement

Scott McIver Articles, The A-Z of Mediation

Whilst mediation is largely successful in producing an agreeable outcome for all parties (boasting a general success rate of around 80%), the real work starts once the mediation has finished.

And, whilst not all of them will be stuck to, or work out in the long run, there are a number of ways in which the nature of mediation can positively influence the upholding of an agreement.

Voluntary involvement

One of the main benefits of mediation is that it is an entirely voluntary process.

The choice to participate or not can empower the participants in their own choices, alleviate anxieties, and increase their willingness to work towards an agreement.

If someone is forced to participate, however, perhaps by a manager or the other party, it can actually do the opposite. They may become defensive and may even resist against any and all points of agreement.

Buying into the process

Of course, it’s one thing getting participants to enter the room, but it’s an entirely different thing to get them to actively participate in the mediation. And, depending on their level of investment, this can greatly affect how successful it will be.

In our experience, if there is a complete commitment for the agreement to work from both sides, it almost certainly will. Both participants need to go into the mediation with an open mind, show good faith in each other, and commit to participating openly and honestly. By doing this, we can then begin to collaborate towards an agreement that works for everyone involved.

Agreement form

The format and building of the agreement can also help to make it more sustainable. For example, it isn’t set out like a contract and isn’t legally-binding in any way. This further reinforces the idea of buying-in to the process and having control of the outcome themselves, meaning that they’re more likely to voluntarily stick to it.

In addition, agreements are formed through SMART criteria (Specific, Measurable, Assignable, Realistic, Time-Related). This makes sure that both participants know exactly what they are agreeing to and can prevent any future hiccups over misunderstandings.

Fall-back clauses

It goes without saying that, sometimes, a recently repaired relationship won’t always be smooth sailing. However, if the agreement starts to break down, it is important to nip it in the bud. As such, the mediator will often put fall-back clauses into the agreement, helping to set up a plan just in case something goes wrong. Usually, this will be something along the lines of meeting to discuss it together or going to see the manager or referrer. This can then help them to get back on the right track.

Referrer remains involved

Very often, the disputants will choose to share their agreement with the referrer, who would usually be their line manager or team leader. This shows that they have attempted to resolve the conflict and can also serve as a fall-black clause in itself if they remain involved.

For example, if things did start to sour again, the referrer can step in, bring them both back together, and informally facilitate a further conversation.

Follow-ups with mediator

Finally, most mediators will carry out a follow-up with the participants after a certain amount of time – usually six weeks after the mediation.

Again, this can help to get them back on track should things start to deteriorate once again. For example, if the agreement just wasn’t working out, it can be amended here, or further sessions can be organised to try again. It is important to note that not all successful mediation cases end up with an actual agreement.

Of course, whilst all of these factors can help to increase the likelihood of the agreement being stuck to, it is important to remember that, sometimes, things just don’t work out. And, when this does happen, mediation should not automatically be assumed to have failed.

For example, even if an agreement wasn’t reached, it can still help to re-open communication to where it may be possible further down the line. And, whether this is done themselves or through the help of the referrer and/or mediator, the participants can still hope to find an agreeable resolution to their conflict.

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