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Manual > 6 - Strategy > Emotional/Relational

Emotional/Relational Issues

There are various approaches to managing mediating parties' past-based emotional and relational issues. Here we are talking about the charged outbursts, passive aggressive behavior and other non-productive and potentially destructive behaviors and expressions common to the mediation of matters between parties who have a difficult history together.

Note that, if the parties desire to have a continuing relationship and the quality of their relations is an issue that they want to discuss, that will be treated as any other substantive issue. What we are talking about here is how can the mediator work through the tension and attacks we so commonly experience. I would like to offer the following approaches: 

A. The Teflon Mediator
B. The Relevancy Check
C. Use of Ground Rules
D. Backtracking
E. Normalization
F. Mutualization
G. Acknowledgment Processes
H. Referral

The Teflon Mediator
The teflon mediator concept has already been discussed above in the context of strategic summarization. Here the mediator essentially ignores all of the parties' non-productive and potentially destructive behavior and expressions, choosing instead to positively reinforce and respond to whatever potentially useful morsels may be occasionally expressed by the parties. It is as if the mediator has selective hearing and can only hear that information that, reflected back, may assist the parties to move toward agreement. By ignoring the non-productive behavior and expressions, the mediator, over time, comes to lessen and, hopefully, extinguish the behavior by not reinforcing it. The risk with this approach is that the parties may experience themselves to be ignored and their concerns unattended.

The Relevancy Check
The relevancy check is an extremely powerful process management technique. Rather than ignoring the non-productive and destructive behavior and expressions, this approach confronts the behavior or expression asking a rhetorical question: "How is [what you are doing right now or what you are saying right now or what is going on right now] taking us closer to your best agreement . . . (pause), because, if it is not, I would ask that we get back on track by . . . ."

An alternative is that of basing the relevancy check on a ground rule. For example, I will commonly encourage the parties to establish a ground rule that: "We agree to work for what we perceive to be our most constructive and fairest agreement." Establishing that process agreement, I can then offer a relevancy check which states: "How is [what you are doing right now or what you are saying right now or what is going on right now] taking us closer to what you perceive to be your most constructive and fairest agreement. . . (pause), because, if it is not, I would ask that we get back on track by . . . ."

Another option is that of basing the relevancy check upon the specific outcomes, interests, or positive intentions you have heard from the party overall or on a particular topic or issue. This version is perhaps the most powerful of all in the sense that it is not based on abstractions such as "best agreement" or "perceived most constructive and fairest agreement, but, rather, on the actual experiential outcomes, interests or intentions of these specific parties. Such a relevancy check might be:"How is [what you are doing right now or what you are saying right now or what is going on right now] getting you John the specific outcomes you said you want (list) and getting you Mary the specific outcomes that you said you want (list) . . (pause), because, if it is not, I would ask that we get back on track by . . . ."

In each version of the relevancy check, the mediator is screening out the undesirable behavior or expression by asking the question of how it is related to the ends that the parties came to mediation to achieve. This technique is based upon the task oriented nature (reaching an agreement) or mediation and is a very powerful transitional device to reestablishing control and progress.

Ground Rules
Reminding mediation participants about their agreed-upon ground rules is another effective technique for managing emotional and relational issues. For example, if a party continues to interrupt the other, we may say: "Did you still want to have that ground rule about not interrupting each other?" Or we might inquire: "Help me again, what was the understanding that you wanted to have about your respective abilities to interrupt one another?" Notice that in each case, we are seeking to bring the issue into the participants' awareness (especially the one doing the interrupting) in a way that does not make the wrong. If a party feels shamed, you run the risk of paying a dear price in terms of perceived partiality. For this reason, it is best to raise the process agreement only so forcefully as to make your point and then to move on rather quickly so as to not make the "offending party" wrong. One way of preparing for such strategic utilization of ground rules is to introduce suggested ground rules in this kind of way: "Lots of folks find that having some sort of understanding about the way we will talk about issues help. I have thus, over the years, developed a set of sample ground rules for participants' consideration. Why don't you take a look at these possibilities and let me know whether any or all might work, and also of any changes or additions that you would like to make." This allows for a very efficient, non-imposing introduction of ground rule possibilities. Many parties simply respond: "These would be fine with me."

Way back when, I remember starting many mediations suggesting that the parties develop ground rules from scratch. My thought then was that participants might develop their agreement-reaching capacity on these process issues before getting into the substantive issues (the ones they really care about). This worked to some extent, in the sense that the parties got involved. What I also found was that they got resentful at spending so much time (and money) identifying their process understandings. It is for this reason that I have shifted to the more suggestive sample ground rules, as follow:

Sample Suggested Ground Rules
The mediator may find it advantageous to assist the participants to establish a few behavioral guidelines for their discussions. Any such "ground rules" should be compassionately enforced as a means of keeping the participants on track. Ground rules may be introduced by saying, for example: "Lots of people find some ground rules helpful for their discussions. These are some that I have developed over time. Would you mind taking a look at these and letting me know if these guidelines would work for you, and of any additional understandings that you would like."

Suggested Ground Rules

  • You will have a full opportunity to speak on each issue presented for discussion - there is no need to rush or interrupt.

  • You are encouraged to ask genuine "questions of clarification." Please avoid asking "questions of attack."

  • Please use each other's first names, not the pronouns "he" or "she."

  • Speak for yourself only.

  • Appeals and attempts to convince should be made to each other and not to the mediator.

  • If something is not working for you, speak up.

  • Try to avoid establishing hard positions, expressing yourself instead in terms of your interests, intentions, and the outcomes that you would like to create.

As each ground rule is introduced, the mediator may want to "anchor" the meaning with a key word or two, or with a gesture. For example, the "no interrupting" ground rule may be anchored with the slight raising of the hand as if the mediator were naturally and elegantly asking a party to refrain from talking. By the association of the gesture (the anchor) and the meaning (no interrupting), the gesture will take on that meaning and the mediator has developed for him or herself the ability to end interruptions by simply raising their hand in that certain way. Each ground rule can be so anchored so that "enforcement" becomes a matter of elegant, often non-verbal, compassionate reminders to "behave."

One easy means of "snapping participants to attention" is to summarize what you have heard thus far or "backtrack." Even in an emotional state, parties demonstrate the capacity to snap out of their emotions to be sure that you, as mediator, are accurately summarizing what they have stated.

It is common for people in conflict to view themselves as unusual or incapable for being unable to resolve the conflict on their own. Most participants coming to mediation will experience themselves to be "unsuccessful negotiators" in not having been able to agree on their own. They have experienced the conflict to be "unsolvable." This frustration and anxiety can elevate emotional and relational issues and make things difficult in mediation.

Normalization is a technique that assists participants to experience their plight as similar to others. If the mediator is wise, the mediator will share how others, similarly situated, have been successful in reaching agreement the great majority of the time. The mediator might offer the following: "I know of others, similarly situated, in comparably difficult situations, if not more difficult situations, who have, the great majority of times, been able to reach quality solutions to these very challenging issues in a very few sessions, in spite of the difficult emotions that commonly accompany these discussions.

Normalization is a part of the process of seeking to create a "mediation persona." Most people have not been through mediation and don't know exactly what is involved or what is expected of them. This gives the mediator the opportunity to influence the participants' expectations. In this sense, the mediator may seek to "future pace success." The mediator can assist participants, by recounting how others have successful solved problems, assist parties to be at their best in mediation. This is a great challenge for the mediator as it is generally the case that participants come to mediation "at their worst," rather than "at their best." Normalization is a very efficient way of speaking to those parts of participants that want to believe the situation is resolvable and that they can do it, just as others before them have.

The reason that the situation has not been resolved to this point is, of course, because of the other party. "If they would just be reasonable (and recognize that everything I say is true), we could have this matter fully resolved in no time. It's their problem . . .." In response to "the blame game," the mediator is smart to "mutualize" the situation as "both of their problem." And, normalizing the situation, "a problem that is fully solvable only by your combined efforts."

Mutualization techniques include identifying certain "preconditions for progress." For example, when one party says: "We'll get agreement when they change," the mediator may inquire whether it is "possible for us to get an agreement where only one party changes." Other mutualizing techniques include emphasizing common interests, the parties' interdependence ("why would you attack the one who has the keys to you getting what you want?"; and identifying points of easy agreement.

Sharing for Acknowledgement
A getting current process, or some similar process, that allows parties to safely, effectively and efficiently convey relational or emotional messages to the other party(ies) is another powerful approach to managing difficult past-focused emotions and relational issues. Consistent with Fisher's and Ury's concept of separating the people and the problem, the concept here is that the mediator create a clear separation between the participants' past-focused, relational/emotional discussions and their future-focused discussions for a best possible agreement. The key is to avoid the participants' past difficulties contaminating their best efforts to reach agreement for the future.

If the mediator fails to effective separate these discussions, it is common that the parties' agreement, if it is able to be reached, will be more of a symbolic representation of past difficulties than a clean effort at developing a substantive agreement that will truly serve them in the future.

It is for these reasons that I, as mediator, like to give participants an opportunity, to the extent they desire to exercise it, at the beginning of each meeting, to say anything that they would like about their past difficulties. Note that the goal here is not to reach agreement about the past. This is not necessary. Getting Current is simply an opportunity for the parties to share their perspectives on the past and to have their respective perceptions acknowledged. The concept is that, with this honoring of respective perspectives, participants no longer need to divert their energy into getting this information out and can better focus on reaching agreement on substantive issues.

If it turns out that one or more participants do not choose to exercise this opportunity to share their perspective on past difficulties, that is fine. The key is that they have the opportunity to share and that the mediator has created this frame distinction so that, if such past-focused relational/emotional discussions should come up during the mediation, the mediator can direct such venting into the established appropriate and separate frame for discussion.

If it turns out that one participant dwells on the past and continually repeats themselves, it may be helpful for you go have the other party affirmatively acknowledge what they are hearing. You may also want to list the messages one party wants to get to the other party on a flipchart. This will help you to assist the sharing party to avoid repeating the same message. When the sharing party is done, you, as mediator, may want to physically give the flip chart sheet with the messages to the other party. The party that has had a hard time moving on from the past will finally experience the other party to have finally "gotten" the messages.

If participants focus on the past, be that by the content of their discussion or their tonality, the mediator can ask them to choose whether they want to get current or work on their future agreement. By forcing the participants to make this choice, the mediator protects their future-focused efforts from being contaminated by past difficulties.

You may also want to consider anchoring this frame distinction between the past and the future, for example, by closing your file when the parties are having past-focused "getting current" discussions and opening your file (to take notes) when the parties are focusing on developing their future agreement. Before long, if you start to reach for your file to close it when the participants start getting into their "stuff," they will catch themselves and say something like "you're right, let's move on, we have already been through that." In shifting out of the "getting current" process, to assist the parties to focus on their best agreement for the future, you may say, "perhaps if we know anything about the past, it is that we would like to do it differently in the future. Specifically, how would you like to do it differently?" Common ground techniques, such as asking the parties to list all things that they may possibly agree on, can also be an effective transition out of the getting current process.

A getting current (or sharing perspectives) on the past frame thus:

separates past-focused problems from future-focused solutions;

separates relational and emotional issues from substantive issues; and

may be "anchored" in with a statement or gesture that reminds participants of the desirability of separating their past-focused relational discussion from their future focused substantive discussion.

I will not personnally go deeper into participants psychology then the sharing for acknowledgement processes described above. Knowing that I know just enough about psychology to be dangerous, I refer participants to counseling if it my sense that their emotional/relational issues preclude them from making progress in mediation. Note that I would not refer participants just because I thought that one, both or all of them needed help (who in conflict could not use some help) unless those difficulties precluded progress in mediation. In the extreme case, I might require counseling as a condition of my willingness to continue offering mediation services. Commonly, I will suggest that the participants might benefit, and the mediation might benefit, from some "parallel counseling."

Still, many participants will resist the time, expense and difficulty of counseling and, thus, the mediator is left to do the best he or she can, oftentimes moving the agreement forward through some measure of continuing tension in the room. Ultimately, there is nothing that seems to help the emotional/relational issues more than resolution of the disputed issues. Whatever techniques the mediator employs to manage emotional/relational issues, it is helpful for the mediator to stay focused on assisting the parties to reach what they perceive to be their best agreement, typically in the context of some measure of continuing relational difficulty.

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