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We mediators must be ready for the unwanted and the unexpected. How would you have reacted to the situation I recently faced?
I was waiting for the participants in my mediation to arrive. In walked the first person. I greeted him warmly and positively as expected of mediators. He introduced himself, but then went on to make a most unhelpful comment. He said: “I want to build a brick wall down the middle of the table.”
Frankly, I was aghast, but tried not to show it. What were this man’s expectations of the mediation if he wanted to block communication?
All sorts of possible interventions flashed through my mind to handle this declaration of hostility. Should I have a quiet word with him about the nature and purpose of mediation? Should I raise the issue with other members of his team once they arrived? Should I laugh off the comment with a touch of humour? Should I simply ignore it?
The case illustrates that we mediators often have to make snap decisions when faced with situations which might otherwise prove to be destructive.
But the case also illustrates the importance of mediators, as much as parties, being slow to draw adverse conclusions.
Why? Because the next thing this man said to me was that he had the bricks in his bag, and that there were only six or seven of them. Then I realised. He was a building expert who wanted to literally build a brick wall to illustrate his points! My problem was that I had been primed by knowledge of the antagonism between the parties to expect the worst. This led me to misinterpret the literal as the metaphoric. He was in fact trying to be helpful.
In the end, there was something comforting about the little brick wall which I allowed to be built on an adjoining table. As the angry and discordant discussion swirled about the room I would glance at the brick wall and be reassured by its solidity and calm.
Settlement was eventually achieved. There proved to be no metaphorical brick wall. The real one, like the dispute itself, was dismantled piece by piece, and removed from the room.As mediator, I reminded myself that successful mediation is not always dependent upon airy and sophisticated skills, but upon those which might be described as bricks and mortar.
Nigel Dunlop is a New Zealand barrister who previously practised criminal and family law.
His professional practice is now solely dispute resolution.
As well as mediating he arbitrates, adjudicates and investigates.
His mediation practice is diverse, including building, family, health and domain name disputes.
Nigel’s mediation training has been equally diverse. It has included courses with CDR Associates, Harvard Law School, Bond University, the University of Canterbury and LEADR.
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