Stay up to date on everything mediation!

Subscribe to our free newsletter,
"This Week in Mediation"

Sign Up Now

Already subscribed No subscription today
Mediate.com

Be a Glass Half-full Mediator

by Sandeep Bhalothia, Achintya Sharma
March 2018

"An optimist sees an opportunity in every calamity; a pessimist sees a calamity in every opportunity." --Winston Churchill

Optimism is a highly important quality of a mediator. If a mediator is not optimistic, parties may never be optimistic themselves. Take for instance, will you fly in a aeroplane whose pilot is not optimistic about whether the aeroplane is flight-worthy or that if it is ever going to make a safe-landing? Or will you allow a surgeon to operate on you if he is not optimistic about  own medical experience in such operations? Obviously no, unless you believe and anxiously look forward to life after death!

Then why would parties have faith in a process wherein the person whom they approached is not optimistic, or loses hope rather easily? A mediator needs to understand the power of positivity and the effect it can have on the people who are involved in a conflict. Mediators need to be optimistic because optimism from the top trickles down and can be a great motivator for the parties. He can help parties to focus on the future when things are not as they should have been, and help them to find a way around any problem.

A positive mediator will usually welcome parties with a smile, look for the similarities between parties’ interests, always watch the language and phrases that he uses; and is empathetic towards the parties involved in the mediation. If you enter a room with this mindset then there are more chances of parties changing their attitude towards a problem. The mediator needs to be hopeful that parties can reach a solution, and that they believe that the world is full of hope and opportunities.

In mediation, the optimism should not be just limited to the attitude of the mediator because it is not that difficult to keep pushing parties for a settlement. Mediation is not all about settlement! A mediator can be truly optimistic when he is well versed with the problem and is able to understand the needs of the parties and their trigger points. A mediator should look towards improving the relationship between the parties than reaching to the settlement. Optimism should also be used with a sense of reality, that being overly optimistic will not help the parties to settle, or even work on to solve the dispute in an amicable manner, and the entire process may go awry.

All those who have done actual mediations, or have participated in mediation competitions might have experienced situations where a party (and sometimes both parties) tries to create a storm in a  teacup! In such situations, a mediator should be able to inject optimism in a tensed situation and try move parties attention to the bigger picture. For instance, a party to the mediation is being empathetic to the needs and problems of the counterpart, only to find that the same is not being reciprocated. In these situations, it is of paramount importance for the mediator to step in and make sure to instil a semblance of optimism to ensure that parties are on the path that would allow them to reciprocate, and come up with amicable solutions helping them settle the dispute, and form long term relations at the same time.   

Another situation where a mediator needs to use his optimism is when parties are “highly” optimistic (in other words, whimsical). Few people tend to ask for much more than what they actually deserve in a mediation. Like if the damages suffered by the one party is X, it is usual to see numbers start at 5X, for example, thinking that:

I. There is nothing wrong with asking for more than what you think you actually deserve as there is nothing to lose.

II. Even if it is asked to make some concession it will still get what it actually deserves, or slightly more than that.

But the problem with such high optimism, or I would say incorrect optimism is that: First, the demanding party may be perceived as irrational, and as someone who is not interested reaching a settlement. Second, it might make the counter-party pessimistic about the entire process. And in such situations, if things go wrong, then the mediator should be equipped to depict a rational optimism to the party.

Optimism, or rational optimism, coupled with reality checking of the offers, and the solutions that are offered should be an ideal way to move forward for a mediator in a dispute. Reality checking allows the prevention of one being overly optimistic, and keeps the parties on track to find solutions that are feasible to begin with. One would not want optimism to delve into the realms of fanciful thinking, keeping options on the table that are not feasible to perform by either one of the parties to the dispute.

At this stage, an important question that might arise in your mind is – How can a mediator be optimistic in right quantity and quality? We believe that a trained mediator will have right quantity and quality of optimism through the realistic assessment of the problem or the differences between the parties. A trained mediator who has thorough understanding of the situation between the parties will try to focus on those facts/information with can lead to some solution, and a mediator will be able to identify those facts/information only if he is well trained and experienced.

Now coming back to necessity of an optimistic mediator. It is true that in a consensual process like mediation, the outcome is in the hands of the parties. If at any point, a party feels that the process is not going in the right direction for them then they do have the liberty to walk out.

But the control of the entire process cannot be given in the hands of the parties, at least not at all times, otherwise the result may incline towards failures. The process of mediation need to be in control of a mediator - allowing some say to the parties in making the process flexible and adjustable to their unique needs.

As a controller of the process, the mediator is also responsible in ensuring that irrational expectations, or incorrect optimism, of the parties while making a demand/offer do not hinder the process of mediation. This is to be noted, especially in the context of peace-keeping negotiations. From the examples of Guatemala and Syria peace mediations, we have seen that there are many parties which play a role within a mediation, but at the same time are not present on the table i.e. the influence is what they try and delve into the mediation. Many military generals, who want to escape prosecution by international tribunals, hope for the fact that the entire talks go awry, and they get the control back in their hands. There would be parties in the mediation process for whom the best scenario would be for the mediation to stop in its entirety. This can be prevented by the mediator as many times these parties would have extremely positional in their demands, the job of the mediator would be to make sure to instil some hope and at the same time ensure reality checking in regards to the offers that are presented on the table by the parties.

A mediator need to be optimistic, he/she should also ensure that parties are also optimistic about the process but there is no irrational optimism on the table. Sun Tzu, a Chinese general, military strategist, and philosopher once said that, “there are not more than five musical notes, yet the combinations of these five give rise to more melodies than can ever be heard. There are not more than five primary colours, yet in combination they produce more hues than can ever been seen. There are not more than five cardinal tastes, yet combinations of them yield more flavours than can ever be tasted.” Similarly, if there is an optimistic mediator helping optimistic parties to resolve their conflict then even the most complicated problems can result in numerous ways of resolution.

Biography



Sandeep Bhalothia is a Penultimate Year Law Student at Jindal Global Law School. He is a Young Arbitration Member at ICCA (The Hague, Netherlands), and a Fellow at World Mediation Organization (Berlin, Germany).


Achintya Sharma is a penultimate year law student at Jindal Global Law School. Achintya Sharma was the winner of the UNCITRAL award ICC:APAC. He is a trained Civil and Commercial Mediator by ADR-ODR International. Took part in the mediation competition of the 3rd NLS:NMC. The author has attended the negotiation workshop of Dr. Claudia Winkler in Delhi and the International Negotiation Workshop at JGLS. Currently the author is taking a negotiation course offered by Yale University taught by Prof. Barry Nalebuff.

Comments