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<xTITLE>How to Make Mediation Safer in Cases of High Conflict</xTITLE>

How to Make Mediation Safer in Cases of High Conflict

by Kristen Blankley
August 2016 Kristen Blankley

I would like to begin this article by thanking all of the mediators across Nebraska for their input on this important topic.  I am heartened to know that this is a topic that has been thoughtfully considered by mediators in every corner of the state.  This letter hopes to capture and continue that rich discussion. 

Mediation is, by its very nature, a potentially volatile situation.  While our perception of mediation might focus on the end goals of peacemaking and relationship building, we often forget that parties enter the mediation in various states of conflict.  While conflict is neither good nor bad in the abstract, conflict certainly has the potential to escalate if not successfully managed.

Safety should be one of our primary concerns as a mediator, if not our utmost concern.  When we think about safety, we should consider the safety of the parties and ourselves.  Safety concerns may come to light in a variety of situations, from threats of violence to table thumping to displays of weapons in the mediation room.  This letter considers a wide variety of safety tips broadly arranged into the categories of pre-mediation, mediation session, and post-mediation. 

Before the Mediation Begins:

Know Your Surroundings

Before you mediate, be sure that you have become familiar with the location where you will be conducting the session.  Do you know where all of the doors and emergency exits are located?  Can you locate the fire alarm or telephone?  Will anyone be at that location if you are mediating at night?  Will anyone be screening the parties for weapons?  Is the parking lot well lit?

If you are mediating in your own location, you hopefully know all of this information already.  If you are mediating on location for one of the parties or at a different neutral site, you may have to do some research, especially if you suspect some hostility.  In some situations, mediating at a courthouse can be ideal, especially if you are concerned about the presence of a weapon or suspect the need for police back-up, if necessary.

Keep Important Numbers on Hand

Certainly, we all know that we can call 911 in an emergency.  Other numbers can also be helpful, such as the Department of Health and Human Services.

Address Safety Issues with Parties in Initial Private Sessions

Conducting an initial private session of some sort with each party to a mediation can be helpful in a wide variety of mediation cases.  During those sessions, you can talk to both parties about the relationship with the parties and whether the parties have any particular safety concerns, button-pushing triggers, or suspicion of weapons possession.  In Nebraska, family mediators are required to screen for domestic intimate partner abuse, but an initial private session to discuss safety may be helpful in every case, no matter the subject matter.  If the preparation session indicates that safety measures must be taken, you can make process choices based on these concerns, such as mediating in caucus or asynchronously.

Prepare Yourself for the Individual Case

In addition to the initial private session, mediators can engage in other preparation to help you make these safety decisions.  It might be helpful to review the case file on JUSTICE or other type of database to determine if any protection orders have been sought or ordered in the case.  In some situations, you might want to conduct a background check on a party.

Understand Certain Human Behavior

Most of us have heard about fight or flight (or freeze), but we could learn more about our human reactions to difficult situations.  Understanding these reactions may help us understand our own behavior as well as the behavior in the parties in the room.

During the Mediation:

Arrange Your Room

Consider how you arrange your mediation room in order to promote safety.  Consider who should sit closest to the door in the event that you need to quickly exit the room.  Think about the seating arrangement and how closely the parties are to one another and your proximity to both of them.  In the unusual situation, you may need to remove all scissors, pencils, letter openers, and other ordinary objects that may be used as weapons.

Consider Modifications to Your “Usual” Procedures

You may want to discuss safety issues in your mediator’s opening statement, such as telling the parties that the process is intended to be a safe space and that you can take precautions if a party no longer feels safe.  If you usually invite opening statements, you may decide to eliminate them so as to not heighten emotions.  Alternatively, opening statements could be given in caucus, instead.

Speaking of Caucuses

Separating the parties in terms of space or time may be a safer way of mediating a high conflict case.  If parties do not feel comfortable meeting in the same room, then use separate caucus rooms for the entire mediation.  If parties do not feel comfortable being in the same building at the same time, then you could consider an asynchronous mediation meeting with different parties on different days.

Take a Break

If things get heated during a session, changing something in the situation may help calm the temperature in the room.  Your options are plentiful:  take a break, tell a joke, offer some snacks, call a bathroom break.  In an extreme situation, you may need to close the session.  These techniques should help diffuse the situation and help you assess whether a safety threat is real.

Have Some Company

If you do not feel comfortable being alone with the parties, then make appropriate arrangements.  In some situations, solo mediators may want to use a co-mediation model in order to assert additional authority in the room.  At a minimum, you may want to ensure that other office personnel are in the building and able to check in on your room if tensions elevate.  To achieve these ends, you may need to mediate during business hours and avoid nights and weekend mediations.

Stay Aware

When you suspect that safety may be a concern, you should stay alert.  Consider trying to widen your peripheral vision in order to take in more of the room.  Be sensitive to sudden movements, especially if you fear a weapon in the room.  In addition, keep an eye on the non-aggressing party to determine if that party is giving non-verbal cues that the aggressor party may be escalating.

Trust Your Gut

Many of us are mediators because we have a good way with people and can often read their emotions.  If you think a party is merely joking or letting off steam, you very well might be right!  Although we generally err in favor of more safety than less, we also do not want to go overboard.  We also want to do our best not to escalate the situation ourselves.

Following the Mediation:

The moments following the close of a mediation may be one of the most critical times in the entire process.  Stagger the exit times of the parties, if possible.  One easy way to stagger the exit times is to break the parties into caucus rooms and dismiss the victim party first, while the aggressor party is still in the building.  Have the parties leave through different exits, if possible, and walk the parties to their car, if appropriate.  In extreme circumstances, you may need to call a police escort to ensure that both parties leave the mediation safely.

Biography


Kristen M. Blankley is an Assistant Professor at the University of Nebraska College of Law.  Professor Blankley teaches and writes on a wide variety of mediation and arbitration topics, including ethics in dispute resolution.  In addition, Professor Blankley sits on the boards of directors of her local community mediation center and statewide mediator association.  She is also involved in the ABA Section Dispute Resolution, notably as the co-chair of the Ethics Subcommittee.  She is also a practicing mediator and arbitrator.



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