Begin With The End In Mind

In order to make things happen and to achieve a longer-term goal or a shorter-term objective, there is the need to begin each project with a directional vision, or each task with a strategic mission. Take mediation as an example. The objective of a mediation is for the appointed mediator to conduct the mediation process in an impartial, professional and reasonable manner, free from favouritism or bias, and to allow all disputants to come out as winners by themselves.

To begin mediation when a dispute arises, the disputants may voluntarily refer a dispute to a nominated mediator. Judging from the nature of the dispute and the disputants' identities, the disputants should have the capacity to assess the need of specialist knowledge required of the mediator to be appointed. The end is to choose a mediator with appropriate skills and experience to mediate the dispute effectively and timely.

Assuming the nominated mediator is willing and available, s/he must disclose, prior to the commencement of the mediation process, to the disputants any prior dealings with either of the disputants, or any circumstances likely to create a presumption of bias or prevent a prompt resolution of the dispute. The nominated mediator should not have any financial or personal interest in the result of the mediation. The end is to ensure no matter might prevent the appointed mediator from discharging the due role in the mediation process.

Another issue that has to be considered upfront is whether the disputants (legal entities in particular) to the mediation process have the proper authority to settle when there is the exchange of offer. Ideally, they should have full authority to settle. Alternatively, they should disclose any limitation on authority to settle, or be regarded as having the authority to settle within any range that can reasonably be anticipated.

Mediation as a consensual alternative dispute resolution has certain value assumptions that explain why the mediator conducts the mediation process in a certain way. These value assumptions range from the mediator's neutrality and impartiality, and the confidentiality of the communications, to interest-based orientation and non-adversarial cooperative approach in resolving the dispute. To enable such value assumptions to manifest themselves in a given case, the disputants and the mediator should all begin with the end in mind!