Mediation as a process allows the disputants to make their best efforts in seeking an agreement. Its purpose is to provide a way for them to work together toward agreement. We’re making a bigger deal about how a mediator controls the mediation (styles) than looking at the heart of mediation which is, parties control the outcome. Look at the articles on mediate.com and any other familiar blog or website and what do you read? Interpretations about mediator styles and their supposed importance to successful mediations. We’re looking at “a living mediation process.” We have the potential to have no process at all. Everyone is free to choose what they want. And call it mediation. For example, look at personal injury cases. It’s shuttle negotiation. Experience and style good in themselves but, more confusing really. There is implied that a certain style will lead to mediator success. Not what I have in mind. The parties control the outcome is much simpler and original to mediation. The question: How is simpler achieved in mediation?
Suppose we compare boxing and mediation? Both contain conflict. Both have facilitators and both are in joint session. Now, would you expect the referee to throw a punch for a boxer? Or, from the corner have the boxer tell what combinations of punches to throw? Perhaps coach either or both boxers on strategy and tactics? No, we expect the referee to act as a true neutral, not taking sides, not helping either boxer, and simply enforcing the rules agreed to by the boxers. Many articles on mediator techniques suggest that we do expect the mediator to talk and explain for the party; to carry messages from one to another; to challenge, coach and even offer opinions about the merits of the dispute as in evaluation.
Mediation does have flexibility with the use of caucus when needed. Originally, mediation did not include accommodating parties and lawyers in deciding on the process. The mediator introduces the process to the parties explaining what will happen during the entire process. There are no party choices about the process because they don’t know what they don’t know about choosing a process. So, the mediator controls the process and the parties control the outcome and this is explained to them. It is also explained that occasionally there could be a caucus with whomever wanted one including the mediator who could ask for one with either party. After a caucus the party would return to joint session to continue the discussion. Also, the mediator would emphasize that the role of mediator did not include speaking for either party. The mediator controlled the process and the parties controlled the outcome. Just as the referee breaks up the clinches (controlling the process), the mediator helps end confusion (Clarifying) and party outbursts. Of course, there may be a need for a party to vent and it’s up to the mediator to evaluate it.
What has become a defensive old refrain for mediator style, “one size does not fit all” is really an excuse for justifying “styles.” When there are many styles limiting self-determination there is no mastery. Caucus was and is a part of mediation, but that’s changing to permanent and separate sessions and so unnecessary. So the roles of mediator, party, and counsel have changed. These changes have made the mediator the star of the show. Throwing punches for the parties. But, facilitating and leading with ideas and speaking for the party are not the same. Why? We forget the parties control the outcome. And when stuck, mediators tend to offer suggestions and self-determination no longer exists. So instead of decision making we get informed consent. Instead of parties thinking we get parties nodding “That sounds good. Go see what they say.” Mediators are punching for the party and shuttling from room to room to deliver that punch.
An often overlooked consideration when using separate sessions is the increased time and therefore increased cost of mediation. There is data about the number of shuttles by the mediator in both family and civil mediation, but parties in joint session can discuss right now! In a separate session there is dialogue between the mediator, party and counsel. Sometimes the party just listens as the mediator, and counsel do all the talking. This consumes time. Sometimes an hour, more or less in each separate session. What this means is that during one party’s caucus, the other party and attorney (at up to $300/hr for the mediator or $5/ min), are idle, or the party sits reading a book! There are lawyer websites explaining mediation, and its benefits to resolving conflict. These sites, caution the clients to bring books or other material to occupy the waiting time between mediator shuttling. Don’t see party to party discussion anywhere and separate session is far from self-determination. And of course, the other party and counsel are not focused on the conflict until the mediator returns to the room.
Mediators should never be an active part of the discussion. Mediators sometimes get asked, “What do you think? “or “What would you do?” It’s not for mediators to dialogue with the parties. They are neutral. It’s for the parties to generate ideas. It takes mastery by that I mean self-control to not answer. Currently, under separate sessions, there’s no way out for a mediator to be anything more than a shuttling referee. The mediator is doing the hard work of negotiating for each side. What if the mediator commits a foul? A low blow (breach of confidentiality) or misunderstanding of what a party is offering. Or offers a suggestion? And when that suggestion is countered or accepted, it’s off to the other party with that idea. And this is supposed to be mediation? Let’s wake up and let the parties control the outcome. Mediators facilitate. Mediators with mastery facilitate in joint session and the parties benefit.
For the mediator to be able to mediate well mastery of skills must exist. Mastery starts with the basic training of civil or family mediation, or both. Of course, this training doesn’t produce mastery but it’s a step in the right direction. For instance, knowing how to deal with habits. Understanding the underlying reasons that produce habit, fear, courage, responsibility, accountability, apology, choices, decision making, along with essential skills for responding to those behaviors, all contribute to mastery. There are countless sources of knowledge and skills, including authors, coaches. Bill Eddy concentrates on HCP’s (High Conflict Personalities) and points out effective ways to deal with this type person. Learn this because there will be lawyers and parties not wanting to be in joint session. Joint session is where the parties belong, the parties needs to throw their own punches. It takes extreme mediator patience and skill to hold a joint session together. All for the benefit of the parties. The words a mediator uses can be a sign of mastery. Most mediators I observed used the word “if” in discussing progress and in “if we reach an agreement we’ll commit it to paper……” The mediator with mastery will say, “when we reach agreement……….” A positive reference to progress is much more encouraging to the party than if or maybe. The master mediator is an encourager helping the parties move along to agreement. If an Intake Form was used with the lawyers then the part about lawyer and party resistance to joint session may have been eliminated. If there is no form then a brief discussion between mediator and lawyer will have to suffice. The parties must self-determine their outcome. Remember the parties control the outcome. The mediator keeps them directed toward the outcome with minimum interventions.
INTRODUCTION AS MASTERY
We’re overlooking the value of the Introduction by the mediator and how the roles of those in attendance affect the outcome of the process. For example, most everybody in mediation is concerned about power imbalance. An Introduction will include ground rules and one of those rules is being respectful to the other party. So during the moment of power imbalance there is a reminder of the ground rules. Mediator controls the process and doesn’t run to separate session.
During the Introduction the parties hear they are the most important people in the room. With that importance comes decision making responsibility. Also, the mediator points out that the mediator WILL NOT AND CANNOT SPEAK for the party. It takes courage to say this but who should throw the punches? The parties take control of the discussion in joint session. This starts invisibility for the mediator. Open ended questions, when necessary, keep the parties talking. A reframe when needed moves the parties forward clearing up the intention of the party. When the mediator has mastered skills and strategies, the process of mediation moves along toward agreement.
Bruce Lee said, “I don’t fear the man who knows ten thousand kicks. I fear the man who has done one kick ten thousand times.” Would you rather learn something new in every mediation or read Marshall Goldsmith’s “Triggers” five times? Or Ken Clokes’s “Mediating Dangerously” five times? Or Bill Treasurer’s “Courage Goes to Work” five times? When you learn it it becomes mastery. Emile Zola (1840-1902) said, “The artist (mediator) is nothing without the gift (mastery), but the gift (mastery) is nothing without work.” Insertions are mine.
Learning something new in every mediation may soon be forgotten and useless. What is there to build on? When not combined with skills that form mastery there is no discipline of self or base of mastery. Thus no mastery and no invisibility. However, the shuttling mediator has the challenge of getting the party’s message correct.
Some will think what I ask is dictatorial. But, I am “zealously advocating” for joint session. A comment aimed at me for this advocacy was, ” I know of no God of mediation who dictated that your view controls universally, nor of any big-shot among us mortals whose “intention” for mediation is similarly controlling.” This comment is a misunderstanding of my advocacy for joint session and the process itself. I advocate for the parties to be the leading players (the most important people in the room) in the process of conflict resolution with the guidance of a mediator who is a master in the art of mediation. The commentator wants the mediator to be the most important person in the mediation and is accommodating to the party’s and the lawyer’s wishes which have nothing to do with the conflict itself. Most of the time the mediator has no idea of the party’s personality, yet giving away the process will do what? Just why do mediators and lawyers do this? The proper platform is party self-determination. The parties created the conflict face to face, they can end it the same way, face to face. Thomas Paine says, “Not being in the habit of thinking a thing wrong gives it the superficial appearance of being right.” We overlook the meaning of mediation and it gets changed to suit accommodating parties and counsel. The mediator’s control of the process is the gateway to self-determination. It’s in the outcome that parties flourish. The parties engage in a discussion about options and alternate choices, then make decisions toward agreement. The mediator’s role is keeping the parties moving forward toward an agreement. It is a skillful mediator’s role and is a great sign of humility by a master mediator to never throw a punch for a party or at a party. Some parties will need encouragement to get into the discussion. Once they understand their responsibility to be the most important people in the room even the HCP’s can be moved. At the end they will feel a sense of pride resolving their issues and doing it themselves.
So what’s a mediator to do? The accommodating habit is so advanced almost everybody takes for granted separate sessions is the way to mediate. How about a mediator breaks the habit, exhibits courage and controls the process? Go back to the original process. Re-introduce the “Introduction” to the process and use “The Intake” with counsel. The mediator is now informed about the conflict and its issues. Those hiring their regular mediator think they know the ropes and want to go directly to separate session not realizing the value of an Introduction for the party. The stage has not been set. And it needs to be set. Sometimes there are opening lawyer statements. Smells like a courtroom doesn’t it? Lawyer statements don’t belong in mediation. Those opening statements are setting up judgements, fears, and probably anger, They’re not the parties in conflict are they? The parties tell their stories. The mediator gives feedback repeating what each party has said. Now all at the table know the conflict and perspective and the need of each party. The mediator can even create a TASK statement identifying the goal of this mediation. This statement aids in party focus.
THE INTAKE AS MASTERY
The purpose of The Intake form is to get the mediator familiar with the issues. This form as designed brakes the ice between lawyer and mediator about the mediation with their client. It also eliminates the summary allowing the lawyer to save time in writing one and presenting only their side or working on their opening statement. Ask about any law or rules affecting the conflict. This also removes two current misbeliefs. The mediator should know the law and be familiar with the subject of the dispute. The mediator need not walk around with a JD degree but can find out what is applicable. We cannot push non-lawyers out of mediation. But, these are the subjects of articles that suggest “what to look for in a mediator.” Know the law and know the subject. How many meditators know surgery or have medical training? In med/mal the lawyers know liability and negotiations and payout. None are pertinent to the mediator whose is focused on the parties and what they say is their need.
One of the ideas about the mediator is they should be “creative” which means suggesting ideas for the parties. A path often used in separate sessions. To combat this a mediator has a choice – ask specific intake questions of the lawyers, or read so-so summaries. While attending a local bar association luncheon, the presenter a retired judge talked about summaries in his mediations and how they were either good or bad and how each would create a bias in him. Now this mediator had to fight neutrality tooth and nail and throwing punches for both parties in separate session. Lots of exposure for that mediator. Doing an InTake provides some answers to questions about the conflict that are more important than reading a good or bad summary and will remove any bias. A summary is only a one sided view of the conflict, anyway. With the InTake the mediator has taken control of the early stages of the process. Doing the InTake is more valuable to the mediator. It shows the lawyer that the mediator will be competent and thorough. And shows the mediator something about the lawyer he is dealing with while getting vital information about the future mediation. These intake questions can cover 15 minutes, give information that is helpful in doing a better job of invisibility. They are not a summary, good or bad. They are a mini interview with the lawyer on details of the case and the client’s current attitude, finding out why the case hasn’t settled, and the lawyer’s experience with mediation. This leads into an opportunity for the mediator to discuss the process and what will be expected of the lawyer’s client and the lawyer. You can make an Intake form for yourself covering pertinent information.
We need to remember that conflict is more often than not more emotional than technical. Technical being fact, rights, and entitlements. A mediator understands there is emotional involvement in a situation that went off the track. Sure facts, rights, and entitlements are present but is the mediator supposed to sort that out for them? Or tell them what they would get in court? Of course not, he’s there to support their positive efforts to come to agreement. They are sorting it out. And that is achieved by discussion. So, the mediator with mastery is there to keep parties moving forward in solving their conflict. For example, knowing why the conflict has not settled (InTake question) can be an emotional reason. The mediator is talking to both lawyers and must never reveal the other’s comments. So being alert to this potential reason why the case hasn’t settled helps the mediator listen to the party discussion or lack of it and the direction of the discussion. Tools like probing, clarifying, open ended questions, reframing or fractionating help the mediator help the parties to open up the discussion and expose that hidden need. How many times has a mediator heard, “Is that all you want?”from one of the parties? The hidden need was exposed. The mediator using the responses from the intake had a good idea about this conflict.
We know of the influence the legal community and the several organizations in the mediation world don’t think it’s wrong to be in separate session. Remember Paine and his comment. But the few who know it is wrong are out there. Speak up it’s time to save mediation. The mediator controls the process and the parties control the outcome. Self-determination opens the door to agreement and resolution. I ask is it too late to return to mastery by the mediator?
Letting the parties find the solution is more important because it’s a step toward self-determination. And please after a party has spoken, never ask the other party for their opinion on what was just said. Like “What do you think about that?” It’s not mastery. It’s being used as a general response much like “no prob” when thanking someone for what they did for you. To me it is trivializing a person’s comment when a thank you or you’re welcome would be perfect. We want to use positive encouragement when talking to the party. It’s mastery not to seek judgement from another. If one party says “Sell the house.” And the mediator says, “What do you think about that ?” to the other party?” We don’t have mastery. The better mediator comment to the other party could be “That’s one idea. What’s your’s?”
Happy Invisibility. Yes, it’s tough to hold parties in joint session. Making the case for joint session requires mastery of the process and an awareness of the psychological and emotional factors guiding the parties. We need a reversal or at least a debate of the current path of mediation. There are people looking for debate, but they want to convert to separate sessions. And make it the paradigm for mediation. They are saying to us “Resistance is Futile ” we will prevail with separate sessions. This cannot happen they are not The Borg……
Courts look to prior events or precedents in establishing policy, and also in measuring reasonableness, when parties are in a dispute. COVID-19 presents a challenge; the last time we dealt...By Anju Jessani, MBA, APM®