The Texas Mediator, Volume 18, Number 2, Summer 2003
A publication of the Texas Association of Mediators
If confidentially is the heart of mediation, self-determination is its soul. The success of any mediation depends on the parties’ self-determination – that is, their ability to make voluntary, uncoerced, informed decisions. From that perspective, it is disturbing that mediators so frequently find ourselves engaged with parties who seem unprepared to mediate effectively.
In some cases, the early stage of the mediation opens a “can of worms” that the parties are not equipped to deal with productively. As the session progresses, a higher level of conflict results. Throughout the session, the parties may be “unreasonable,” distracted by their own anger and unable to articulate or address their interests in productive ways. “Reactive devaluation” may obstruct a party’s recognition of the value of an offer that meets her interests, as the source of the offer diminishes its values in her eyes. [Ross, Lee (1995) “Reactive Devaluation in Negotiation and Conflict Resolution” in Barriers to Conflict Resolution, Norton] When parties face such obstacles to effective decision-making, self-determination is impaired.
By building on the model of disability access planning, this article aims to highlight ways in which mediation readiness may be enhanced by a convenor working with the parties before the session to enhance their negotiation skills. The convenor uses the same tools as a mediator – and may even be the mediator — but begins at an earlier stage in the process. Handing the parties a brochure is not enough; neither is reciting the litany of mediation steps in a quick phone call before the session. The convenor needs to engage in an interactive process of on-going assessment, coaching and re-assessment with each party in order to attain a level of mediation readiness.
In ADA mediation, the convenor is responsible for assuring that the mediation is accessible to participants with disabilities. In response to this legal obligation, pre-session preparation has become standard practice in ADA mediation. The convenor begins this interactive process [U.S. Equal Employment Opportunity Commission, Enforcement Guidance: Reasonable Accommodation and Undue hardship under the Americans with Disabilities Act, Updated March 2, 1999] by describing the mediation process and the person with a disability identifies disability-related obstacles to his participation. Together they then look at the aspects of the mediation need to be modified, discuss potential accommodations and select those that will best ensure the person’s active participation. For example, a person with multiple sclerosis, informed that the session might be lengthy, would likely respond that he gets fatigued easily, especially in warm surroundings. He and the convenor would then discuss options such as regular breaks, perhaps with a place to lie down, and an air-conditioned room.
Disability access planning is oriented around the mediators’ non-judgmental acceptance and understanding of the obstacles faced by the person with a disability. The approach in access planning is on modification of the process – not on changing the person with a disability — to enable his effective participation. The mediator herself may have to modify her accustomed way of conducting the session, for example, by using and referring to easel paper or by regularly reviewing information covered in the session for a person with poor short term memory.
From this ADA mediation practice, we can extrapolate convening practices to enable the most effective participation of any mediation party. Mediators, or other convenors, can use pre-session preparation to ensure that all parties understand the process and can participate effectively.
During convening, it is standard practice to brief the parties on the essential components of the mediation process. This discussion may prompt some questions and expressions of concern, which the convenor then addresses. But the discussion usually does not touch on obstacles faced by the parties, as the disability-access conversation does. Disability-related obstacles provide the context for analyzing what the party will need to ensure his full participation. As I discuss in depth below, the context and content for general convening emerges from the parties’ discussion of their perspectives on the case.
Chris Moore, in his seminal book The Mediation Process [Moore, Chris (1996) Jossey-Bass] discusses the mediator gathering data through interviews before the session in order to develop an intervention plan to assist the parties. Taking this notion one step further, the convenor can gather information while in dialogue with each party and make them partners in this strategizing. Moore’s “conflict analysis” task of synthesizing and interpreting data can be conducted throughout the convening process, in collaboration with the parties.
Unlike disability access planning, in convening parties explore ways that they, themselves, can adapt to the process to make the mediation successful. The convenor should be looking for red flags, signals that the party may be encountering a barrier to effective participation. For example, the party may seem to have trouble concentrating. The person may be so angry that she is not ready to be analytical about the case, or she may have gotten off a long work shift and be exhausted, or she may have a cognitive disability, or she may be preoccupied about child care. These are obstacles that the mediator will confront during the session if they are not addressed during convening.
The convenor and the party may find ways to address obstacles in the disability access-type model of adapting the process, such as a cooling-off period before mediating or scheduling during the school day to alleviate child care concerns. Or the convenor can work with the party to discover ways that she may modify her own behavior, such as developing more effective ways to share her point of view with the other party. Or the convenor and the party may develop hybrid approaches to addressing obstacles.
My convening practice is based on constant assessment, coaching and reassessment in the context of the case. Before I discuss the general mediation process with the party, I cover five topics:
The framing of the conflict is a critical component of mediation preparation. The party who can consciously frame the problem — with a self-awareness of his predisposition to give credence to his own view and disregard elements based in the other party’s perspective — will have more control over the process [Liewicki, Roy J.; Saunders, David M.; Minton, John W. (1999) “Communication, Perception and Cognitive Bias” in Negotiation], and thus experience enhanced self-determination.
Identifying her own interests is an important first step for any party in preparing to mediate. After introductions and an explanation of the convening process, I ask what the party sees as the key issues in the case. In the mediation session, the party will need to be able to explain her concerns to the other party in a way that the other can understand. Frequently a party can tell her “story” fluently, but cannot extrapolate the critical issues. When this occurs, I work with the party, sorting through the relevant experience and eliciting concerns. Parties who cannot articulate what is important to them are not ready to mediate.
The convenor coaches each party to be the most effective negotiator that she can be. The parties must understand that the convenor is conducting the same process with both of them. As in any caucus, risks are inherent in developing rapport, and it is important for the convenor to set boundaries and protect against any perception of bias.
Talking to the party about the critical issues leads naturally to coaching the person on effective negotiation approaches. Asking appropriate questions may engage the individual in the conscious design of a personalized approach. Such a question might be, “It seems important to you that your supervisor understand that you feel picked on. How might you explain your feelings to him so that he can understand what you’re saying?”
A logical follow-up, once the person’s view of her own issues has been framed, is to ask what she thinks might be the critical issues for the other party. Many people find this difficult. However, identifying the other party’s key issues can be a major breakthrough. Once the parties understand that they’ll negotiate more effectively if they understand the other party’s perspective, the session is much more likely to be productive. This technique also affords a face-saving opportunity for a party to begin developing empathy, even in this private setting.
In a recent convening session addressing an employee’s complaint that he had been passed over for promotion, the employee at first insisted that he had no idea what mattered to management. Eventually, he admitted that one key issue for management is to have employees do their jobs properly. He then shared with me his suspicion that management considered him a “troublemaker.” On the basis of these two pieces of information, we strategized how he would present to management his belief that he could do the job and in an appropriate manner. We discussed that it might be helpful for him to raise management’s concern – his image as a “troublemaker” – and his own concern — the reasons why he was not promoted – during the session. He came to recognize that understanding management’s perspective might be one of the most important components of negotiating for that promotion – the highest priority of his desired outcomes.
Unlike the person in the previous example, parties frequently go to the table without a clear sense of what outcomes they seek. Certainly, it is counter-productive for parties to come in with bottom-line demands. However, mediation is much facilitated when, during the convening process, the individual parties brainstorm a range of creative and realistic ideas that will meet their needs. Articulating their own interests and goals and then those of the other party can lay a foundation for discovering common ground and dovetailing interests [Getting to Yes, Fisher, Roger, Ury, William and Patton, Bruce (1991) Penguin].
In the convening context, the key players are those people who should be at the table in a given case. Convening is an opportunity to explore why particular parties have been selected to participate and to resolve any questions or conflicts around their participation – or non-participation. In addition to ensuring that the right people are actually there, talking through who should or should not be there can bring a measure of clarity. In my convening experience, this discussion sometimes identifies potential mediation participants who subsequently agree to be “on call” in case the parties request their participation during the session: for example, the co-worker who’s been complaining about one of the parties or the former supervisor who issued the discipline in question.
Obstacles to resolution
In eliciting potential obstacles to resolving the case, by simply asking, “What do you think might be obstacles to a successful mediation?”, the convenor can make a direct link to negotiation skill development. I have been amazed at the number of mediation parties who acknowledge that they, themselves, are likely to pose an obstacle through their short temper or other self-described communication deficits. This is an opening to work with each party on her own accountability for the success of the session.
We also discuss what obstacles to resolution the other party might pose and productive ways for each party to address obstacles posed by the other. Throughout convening, the focus is on what each party, herself, through her own efforts, can do to have more control and make the session more productive.
Finally, I ask the party to describe what the likely outcomes will be if the situation is not resolved in mediation. A reality-testing conversation about outcomes offers a face-saving way for the party to develop realistic goals, outside the pressure of the session. Informed decision-making is a key component of self-determination. Through discussion of likely outcomes, the convenor can also discover whether the party understands his rights and obligations. If the party is not prepared to make an informed decision, the convenor should suggest that the party consult with experts or obtain essential information before the mediation session.
Discussion of these five topics provides the opportunity for examination of the parties’ interactions and ways of communicating. The convenor can use the information shared by the parties to coach them on productive communication approaches. Communication is about listening, as well as speaking. Coaching includes helping the parties be more open to hear each other.
Sometimes the parties are not ready to mediate after one convening session. The convenor may work with them for an extended period before scheduling a mediation session. In one case, I worked with the parties in convening sessions for weeks with the goal of lessening the intensity of their workplace dispute. The transcript below, based on notes from my separate conversations with these parties about a key incident, illustrates using the context of the case to work on mediation skills. [Some facts have been changed to protect confidentiality.]
Dave: Helen overheard me talking to a co-worker. Apparently she misunderstood what I said, because she made a sarcastic remark about me under her breath. Later she found out that she was wrong. She actually came up to me and apologized. I couldn’t believe it.
Judy: It sounds like she is making an effort to change the way she behaves towards you.
Dave: No, nothing has changed. It was just one incident.
Judy: Well, it seems so different from how things have been between you two in the past. It’s not that easy to make an apology, and it sounds like she did not have to. I bet that was hard for her to do. But, for some reason, she really wanted to do it…. How did you react?
Dave: I thanked her. That was all. It was short, but it felt good.
Judy: It sounds like that might be a first step toward repairing your relationship. Let’s see if other opportunities come along to build on that.
Helen: I did something different today. I made a sarcastic remark to Dave about something that I thought he did, but then I found out that I was wrong. I decided that I had to apologize. It’s not something that I usually would have done, but for some reason I just did it. It was just a little thing, nothing important. I guess I did it for myself.
Judy: It does help yourself to have a comfortable work environment, and it’s great that you were able to do that for yourself. But I’m not sure it was just a little thing. It looks like an important step towards repairing your relationship with Dave.
Helen: I guess in the back of my mind I was thinking about what you and I discussed last time, about being conscious of the words I choose and about setting an example as Dave’s superior.
In this case, both parties said that they were too angry to meet with a mediator. But they were willing to work to make their interactions more comfortable in the meantime. Even if they ultimately decided that they still did not want to mediate, their work in the convening sessions would move their relationship forward.
The convenor should be on the alert for obstacles to effective negotiating and work with the party to address any that appear. I frequently give the parties “homework,” much as the mediator does when the other party is going to private caucus during the session.
In fact, convening sessions are private caucuses before the session, and should be considered part of the mediation: “pre-session,” but not “pre-mediation.” The parties need to understand that they are beginning their work now. Perceived successes and “aha” moments can be a source of motivation and empowerment for the parties as they start to feel that they have some control over the conflict and the upcoming session. The convenor needs to be regarded as a neutral, regardless of whether she is the mediator or not, and standard confidentiality provisions that apply to the mediation session itself should apply here.
The assessment/coaching/re-assessment model may also prove essential during the mediation session if parties seem unready to participate effectively. Mediators will want to make sure that parties who come in with animosity don’t leave with even more hostility. As the process progresses, the mediator needs to check out the parties’ ability to use the exchange of information in productive ways. That means being attuned to the parties’ ability to handle conflicts that emerge during the session, and not leaving the parties behind as the mediator moves forward through the mediation steps.
To sum up, the main tasks of the convenor have traditionally been to describe the mediation process and to answer the parties’ questions and concerns. When parties with disabilities participate in mediation, convenors also explore with them any need for adjustments to the process. Convenors can fruitfully work with all parties before the session to identify and address potential obstacles to resolution. Convenors can prepare parties for enhanced participation in mediation through self-awareness and modifying their own behaviors to negotiate effectively and navigate interests, options, and decision-making –essential components of self-determination.
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