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Mediation Blog by Diane Cohen
How often have we all wanted to say something to someone important in our lives, and yet our meaning is misunderstood; our words fail us; or confusion ensues and we wonder what happened. The same holds true for parties, and for many parties this is the cause of their conflict.
As mediators, if we are well trained, we should have the ability to help parties have the conversation they each want to have. We should be able to give all parties space to express themselves; help them refine and convey their meaning, to hear themselves and reconsider their intent if they want to; help the parties understand where they are misunderstanding one another.
Very often, having the conversation they want to have is the entire result that parties desire. There may be no concrete disagreement beyond that. However, when there is a more concrete disagreement, having the conversation they want to have involves all of the foregoing plus some additional help in having a conversation that is productive in their eyes.
Parties often deviate from a conversation that addresses their concerns, to other types of habitual conversations which veer off the topic at hand to something easier and more comfortable, albeit possibly alienating or without purpose. When the mediator perceives this to be happening, the mediator can transparently note how the parties seem to have shifted topic, and ask whether this is what they would like to discuss, whether they feel this would be productive, or if not, whether they want to have that discussion even though it may not be productive. It is imperative that when the mediator asks these questions, that the mediator makes it clear that he or she has no personal opinion on the correct answer, and that any decision the parties make on this is fine. Parties generally respond to this type of questioning with clarity, greater self-awareness and focus.
When they are at loggerheads, we should be able to have them step back and understand why they are at loggerheads. If each party sees his or her goal as achieving a very narrow and specific result — and these results are contradictory — they may feel at loggerheads. If the mediator points this out and asks whether they can each broaden the class of solutions they are considering so that both their interests and the interests of the other party are considered, their creativity may be stimulated.
Helping the parties have the conversation they want to have is a matter of hearing and tracking the concerns expressed by the parties, noting whether and how they may change during the discussion, sharing these observations with the parties, and helping the parties formulate a structure at any given point in the conversation. The structure must be one developed by the parties, but the mediator is the organizer. The parties are the creative force, and as they are creating, they are developing new self-awareness about their own interests, goals, and desires. As these new realizations set in, the mediator’s crucial job is to reflect to the parties what the topic is that they are discussing, what each perspective is on that topic, and whether that topic has shifted. If the topic has shifted, the mediator must note this to the parties and ask whether they want to switch topics or whether they want to complete the topic they were on. The answer is not clear. The parties may be shifting for a good reason. Or they may be carried along in a stream of consciousness. Only the parties know. It is the mediator’s job to ask and to bring it to the forefront of their minds.
When the mediator is able to continually bring this type of awareness to the parties, the mediator will often find that the parties have all the tools they need to self-resolve. The resolution may be simply that they now understand one another and do not need any type of agreement, or it may be an agreement of some kind. Regardless of the type of resolution, it all happens as a result of the parties having the conversation they want to have.
 For those with a mathematical bent, it could be noted that a conversation is a curve. At any point in the curve, the tangent is a straight line. The parties should always be clear about the direction of that straight line. Helping the parties consider whether they are on the right “tangent” and then correcting, is a crucial way that the mediator can help the parties develop a productive curve to their conversation.
Diane Cohen is a mediator in private practice and writes regularly on the process of mediation. Diane is an impasse mediator, and therefore mediates in all realms, but primarily in the family, divorce and workplace areas. Diane is a former co-president of the Family and Divorce Mediation Council of Greater New York. She has a J.D. from Columbia Law School, was certified as a community mediator by the Unified Court System in New York, and is a NYSDRA-certified mediator. She conducts workshops for mediators who want to work on their mediation skills.
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