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When you are in a mediation session as a mediator, with all parties ready to start and you are well prepared (what is essential), you may think you have all that you need for a successful mediation. That is what many people who participated in mediation think. But my own experience says, no, something more is required.
What happened to pre-mediation? Some in my country (Costa Rica) think that pre-mediation is not important. Some think that pre-mediation is important, but is a job of a case administrator, not the mediator, because the mediator can compromise her “neutrality” if she talks with the parties even in separate sessions before the mediation audience.
I don´t think so. I am going to explain why: The other day I participated as a mediator in a conflict between the owner of a clothes store and the customs agency. The first party came to the mediation with a very young lawyer; the other party with three representatives, one of them a lawyer. Some commodity of the clothing salesman where stole from the customs agency and the salesman requested appropriated compensation.
They have the will to resolve their difference in a peaceful and negotiated way, but they were not prepared. The salesman didn´t bring to the negotiation table the documents proving the loss, but he said he sent all to the agency and the other party said that he had just received one excel spreadsheet with the information he wanted to describe without any test. And that precisely was what the agency needed to estimate the compensation they agreed to give.
I thought: why did they come without the right preparation if they talked before? how does the center where I work as a mediator make the pre-mediation interviews? why insist on doing this by telephone with only one party and not let the mediator do it face to face with both parties or at least by telephone?
I don´t think that the mediator compromised her neutrality (I prefer the term “objectivity” from Robert Benjamin) if she participated in the whole process of mediation. It is part of her duty and always has to be objective, “multi partial” (I like this term, too).
It is necessary that you as the mediator prepare parties to the joint session. We have to listen to them carefully and explain what is the process of mediation to all involved. We have to do that too in the beginning of the audience, but we have to prepare parties before their face-to-face together.
That is a phase of the process and one that is very important. In this real case one party said, “Okay, send the information to me and I am going to study and call you.” Immediately a light came on in my brain and I know that as a mediator I can´t force an agreement, but I saw the parties with a very strong will to negotiate, so I said, “Why don´t you sign a partial agreement today that one party recognized the right of compensation of the other and agree when you can send what information you need to finally resolve your differences?"
They say yes and immediatly figured out all the dates, deadlines, type of information, all what you have to put in a document with all the needed details. And all the parties signed.
They left very happy. They told me that they like the Mediation process because they had the opportunity to talk about their emotions because they knew each other for over ten years.
The next day I received an email…imagine! One party asked the other for more time to collect all the information he mentioned during the mediation process he had prepared! And he didn't even say how much time!!
Really?! I wanted to kill him!! I am kidding, obviously, but how can a party can be so carefree? The day of the mediation, I explained to the parties all about mediation, their role, the confidentiality, the ground rules, the wonder of mediation, the meeting room as a safe place, I had coffee (remember that with the stomach full the brain sends signals to the endocrine system and this releases oxytocin and people can be calm and attend in a better way the conflict).
I even told them we can walk around the garden if the feel uncomfortable (I love the quote of Tammy Lenski about this “technique”), but…they weren´t prepared!
I wish that we had a proper, face-to-face-all-inclusive pre-mediation process. I am convinced that everything would have gone much smoother and the parties would have stuck to their agreement if their expectations had been set ahead of time.
Rosa M Abdelnour is a Lawyer since 1983 and an accredited mediator since 2000. It has been the Founder and Director of the first House of Justice (Mediation Center) in Costa Rica since 2000 until 2010, Mediator and arbitrator in the Center of Alternative Justice for the BAR in Costa Rica. She has a Cum Laude PhD in Public Law by the University of Navarra, Spain and a Specialty in Strategic Negotiation from the Negotiation School of the University Pablo de Olavide, Sevilla, Spain. Has a Master´s degree in Education and Teaching Innovation. She received training from the OEA in Arbitration, in Negotiation from the Conflict Network Resolution from Australia and other trainings in the field of the Alternative Conflict Resolution. She is a law teacher and has worked as a Dean of a Law School by 15 years. Actually collaborate as a peer evaluator for the national agency for accreditation in higher education and as an audit to accreditation of judicial offices. She is a Deputy Magistrate of the Constitutional Court in Costa Rica.