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<xTITLE>Taking Control of Mediation</xTITLE>

Taking Control of Mediation

by Michael Jacobs
September 2020 Michael  Jacobs

We like to feel in control. For most of us, we feel more comfortable and at ease when we have a sense that our plans, actions and choices have a direct impact on the way things turn out. To lose this sense of control is to be open to doubt, anxiety and fear. 

Our desire for control is one reason why many people find mediation problematic. One of the first things that a potential party is likely to hear from the mediator is that there is no guarantee of a successful outcome. No certainty that they will get what they want. 

The gap between participation and outcome is one of the reasons why people are hesitant to engage. It’s not that resolution doesn’t happen, it’s the fact that parties can’t make it happen. Reaching agreement isn’t something that either party can control. 

The ‘black box’ nature of mediation only increases their sense of uncertainty. Thrown into a process that they’ve never experienced before, parties struggle to know what’s expected, and more importantly, what’s effective. In the absence of control around outcome, parties look for those elements that they can control. Chiefly this consists of the narrative they tell. They can control their version of events. 

It isn’t surprising then, that parties spend vast amounts of time reviewing, rehearsing and polishing their stories. They practice their tales of grievance, woe and blame until they have them down pat, believing that the best articulation will win the day. Having a well-honed recitation provides a sense of security and safety. We seek to control what gets defined as ‘the truth’. 

Truth, however, is rarely simple or straightforward. Instead it is filled with complexities and contradictions. In excluding the ‘messiness of life’, reality is effectively shrunk to isolated islands of meaning. In such a fragmented world, disconnection rules and finding common ground is enormously challenging. 

Like opposite ends of a magnet, these polarised views only serve to repel parties further apart. It also engenders a kind of emotional and psychic entropy, whereby the energy and enthusiasm for the process is drained away. In seeking control of the narrative in the room, mediation is drained of its potency and power.  

So the question remains, is there nothing that parties can control? On the level of process, parties usually have the choice to attend mediation or not. They can also choose between sitting in the same room and sitting separately. And, ultimately, they can choose to take mediation seriously or to treat it as a hoop to be jumped through, on the way to some other less ‘touchy-feely’ process. 

Within the session itself, control is often equated to being proactive. Speaking first, putting out your agenda, hammering home a particular point of view. Of course, in most cases, what happens is when push comes to shove, the other side simply pushes back. And very quickly the battle for control becomes part of the dispute. 

What’s rarely recognised, is that control lives as much in the response as in the opening salvo. Rather than trying to dictate the information flow, there is an alternative choice. Parties can extend an invitation. By inviting all the relevant information into the room, you redefine the meaning of the process. Rather than competition, you signal a shift to cooperation. The shift not only shapes the expectations we bring to the process, it also opens up a new range of potential outcomes. 

While in theory this might sound like an impossibility, in practice it is actually remarkably straightforward. It simply requires the willingness to listen and understand. In this choice, we have complete control. Neither the other party, nor the mediator, can prevent anyone from trying to make sense of what they are hearing. 

Sadly, most parties fail to go down this route. They don’t realise that taking control of understanding is perhaps the most effective strategy they can employ. Knowledge is power and the more you know the greater your influence and leverage. Understanding what’s important to the other party, allows you to frame offers and proposals so that they have the best chance of being accepted. To know what the other is willing to say yes to is one of the most important piece of information anyone can acquire. 

Seeking to understand also has an enormous impact on the emotional temperature in the room. It is hard to continue arguing with someone who is making every effort to understand you. Understanding builds both rapport and respect, key ingredients in any move towards resolution. Listening also narrows the gaps between parties by surfacing common ground previously swamped by unwarranted assumptions and misunderstandings. 

If all this is true, then mediators should be proclaiming the good news. Control is in the hands of the parties. They can both shape the process and vastly increase the likelihood of a successful outcome. And none of this involves giving up or giving way. They simply need to recognise that agreements arise when both sets of stories are heard and acknowledged, neither excluding the other. 

This article is in no way meant to demean our need to feel in control. We all know that having some sense of control is especially important when we are anxious and tense. Mediation, in focusing on issues around money, children, relationships, and livelihoods, is very much a high-stakes activity. When we engage in mediation as a competitive process we only ratchet up the tension. Battles may be won, but there are always casualties. 

As mediators, it is our responsibility to be clear from the outset that control is always available. Parties can open or close the tap of information flowing into the room. Keeping it closed invariable results in a divisive tug-of-war, with each party trying to pull the other across the line. Choosing to maximise the information flow provides the best opportunity to reach mutual understanding and find mutual outcomes. 

The power to control lives in the willingness to listen and to learn. 

  

Biography


Michael Jacobs has been mediating for the past 23 years across a range of disputes, including family, community, workplace and civil/commercial. He appreciates the fact that even after all this time, he is still quite capable of making mistakes and getting things wrong – it means that he has more to learn.  



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