The mediations that I handle involve existing relationships rather than one-time contracts or situations. I mediate employee complaints for a large corporation whose employees tend to stay; family custody and visitation matters and co-op and condominium disputes between shareholders and shareholders and management. These are relationships that the parties want or need to continue, which is what makes mediation an ideal dispute resolution mechanism for resolving them. One goal of these mediations is getting the parties to realize, as close to the beginning as possible, the importance of the relationship and the need to collaborate to maintain it.
Most of these people have never been to a mediation and many are skeptical of its ability to help. There is a technique that I have developed to help the parties to focus on the relationship and their need to nurture it. This is a simple technique, and it seems like no more than ordinary social chitchat.
As we all know, the first few minutes of a mediation are crucial, and mediators work hard to get off to a good start. Much has been written about the room—the arrangement of chairs and table, the atmosphere created by lighting, plants, quiet, etc. The aim, of course, is to make the room as inviting and as conducive to cooperation as possible. As someone who mediates in various company facilities, with no ability to affect the choice of room and no opportunity to change that room, I often can’t control this aspect, beyond moving a few chairs. The workplace spaces that I am allotted range from very acceptable to really bleak (a basement conference room of a working garage was the absolute worst). In these mediations the employer, not the mediator, selects the mediation room (often with little to choose from). What I can control is the personal atmosphere that I establish.
While giving the introductory statement a mediator also gives the parties a sense of what she is like and what they can expect, as well as establishing the tone of the mediation (or attempting to do so). Immediately after that statement, mediators typically ask the complaining party to tell what has brought him to seek (or be assigned to) mediation. I do something else as well.
I try to bring the parties quickly, but subtly, to a sense of what they have in common, and what is worth working to preserve. I do this by asking questions and expressing interest in aspects of the situation that have no direct bearing on the problem at hand. For example, when I mediate disputes involving child custody/visitation issues, I ask about the child(ren). Ages, gender, what kind of kids they are, where they go to school and how they are doing there. I ask if anyone has a picture of the child/ren (usually they do). This is done to further my understanding of the issues that will but have not yet been raised. And it is important to know if a visitation problem involves one two-year-old or an eight-year-old and a teen-ager. But the ulterior motive is to get the parents to begin to focus on the fact that they are parents, as well as ex-lovers or spouses, and they both do genuinely share an interest in this unique younger person(s). It often works to make the parties less hostile and more willing/able to talk constructively than before we took this tack together. Looking at a photo of the child/ren has turned out to be a real mood-changer for many angry parents.
In workplace mediations, the task is a little different. I handle many cases for a large corporation where employees have strong union protections and benefits and tend to stay a long time. The corporation has a very distinct and hierarchical multi-ethnic culture. The complaints often involve allegations of discrimination and problems with how the employees believes they are treated (with no respect or recognition of their worth, etc.)
These employees are not generally very mobile, and most of them do want to stay until they retire. Some like the workplace or like some aspect of it—any kind of respect that it accords then; the recognition (external or internal) that they perform their job well; the collegiality that it provides, etc.. Some do not like working there, but appreciate the benefits. Almost all profess to want to do their jobs in a stress-free situation. So I ask for a real description of what they do and how long they have done it and then ask some more specific questions (and I ask management many of the same questions, usually in caucus). I sometimes spend some time making sure that I understand the specifics of their jobs and that they realize that I do. This often serves to remind the employee that this is where she/he wants to be, right now, and that she has a real stake in making it as good a situation as possible.
Here is another example of this getting the parties to focus on the common interest technique. I recently mediated a co-op dispute between two shareholders who live directly above/below each other and were at war with each other over some quality of life issues. The dispute centered on the fact that the one who lived in the upper apartment liked to smoke cigars on his terrace. The smoke from the cigars drifted down to the apartment of his smoke-abhorring neighbor. Their initial rancor, expressed in pre-mediation discussions was considerable, and included one of them extracting a commitment from me to not leave him alone with his adversary, even in the waiting room of the mediation site. I began the session by asking questions about the co-op building (the location, age, type of building) and went on to examine the residential history of each of the shareholders (when did they move in, did they like the neighborhood, what was their apartment like, etc.). The whole discussion took no more than 10 minutes and was not presented as an inquiry, but rather as me needing to get a picture of the situation. The mood did change and the mediation progressed steadily and very swiftly toward a resolution. Time well spent.
People seem to like telling others, perhaps especially the professionals who are trying to help them, about aspects of their lives that they know well. And they benefit from being brought to focus on the positive aspect of the situation that has brought them to an impasse—a child whom they care about; a job that they value or need, a residence that they call home.
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