Mediation is scheduled. The participants are about to enter the room. You have the task of mediating the dispute. As mediator you must facilitate exploration, encourage participation, control proceedings, and seek to skillfully lead the disputing parties to a harmonious resolution.
In the moments before the mediation begins, what are the participants feeling? and how do their feelings affect the chances of a successful mediation? Perhaps of greater significance, how can you, as mediator, gain a deeper insight into the feelings of each participant, and do something to improve the quality of the outcome?
A great majority of people have never experienced mediation. Most know nothing about what to expect. Most participants approach mediation fearfully, with a strong degree of skepticism about any possibility of a successful resolution to their dispute.
Process of Human Interaction
The very experience of human interaction, or the encounter of two parties meeting (whether formally or informally) is a process that deserves careful and in depth study. These meetings could be as casual as neighbors visiting over the back yard fence, or as formal as a major social gathering of dignitaries, or a formal meeting of a CEO and his upper management personnel.
Studies into human interaction or the encounter process has been a matter of investigation for only a few years. The most extensive studies have involved the marketing investigation of the customer/employee relationship.
Marketing studies have proven that a better understanding of the interaction between the customer and the employee will improve the experience for everyone. In business profits will increase, the enhanced employee performance will result in greater job satisfaction, and the customer will return to buy again. When conduct in encounters among people is improved, everyone wins!
Should special attention be given to the interaction of parties who are preparing to enter the mediation experience? What aspects of their lives, events before, during the process, and after mediation will reveal a better understanding into the practice and skills of the mediator?
A special meaning should be applied to the interaction of participants who are about to experience the mediation process! This is true for the encounter of both disputants, and the mediator as well! This is true because the interaction in mediation is a three-way experience rather than a two-way involvement between the customer and employee.
A distinguishing characteristic of the encounter as part of the meeting of individuals is the purposeful, task-oriented nature of the interaction. It seems an almost ritualized pattern of human behavior governs the course of the encounter. These patterns are appropriate for the situation. A better understanding of these patterns on the part of the mediator will increase the possibility of achieving satisfaction for everyone involved in attaining the desired goal.
In other words, the encounter process of human interaction is a series of natural steps. Very little attention however has been given to a study of this process. It seems to be just assumed that people meet, whether formally or casually, and everyone hopes for the best. Tom Peters is a recognized voice in the world of business management. In the early 90’s he wrote Liberation Management, challenging the thinking of business practices. He speaks of what had been identified as the service encounter process and concluded that this is the process “by which your service is experienced by the customer.”
Tom Peters further pointed out that evaluating the process means “figuring out how people piece together little clues to get a bead” on each other. The encounter process may be described as a dyad where each party “takes a reading” of the other to draw conclusions that will prepare them for their future response.
Such evaluations are made, almost subconsciously, but the conclusions drawn have dramatic effect on the outcome of the interaction. Recognition of the process of human interaction is valuable to management overseeing the customer/employee relationship. If the customer leaves the store with a negative attitude toward the employee and his conduct, management must seek to alter future encounters simply for the protection of profitability.
If such conclusions are effective in the marketing world, how much more significant are these conclusions in the effect they have on the mediation process? The mediator, while not management, is responsible for the facilitation of proper discussion and conduct throughout the session.
Awareness of the interactive process between disputants in mediation may enable the mediator to take pro-active efforts to create a more productive exchange of ideas. The results will be a more mutually satisfying resolution to the dispute.
In mediation the process of human interaction (as with all encounters) actually begins before the participants assemble at the assigned location. The first scenes of interaction are affected by the experiences of each party immediately prior to engaging in mediation.
Before the parties assemble numerous events can, and probably will occur. Seemingly well-intended friends may call with a desire to provide support, or even incite the disputant to more severe activity. Exceptionally good or bad news may come from a variety of sources affecting the mental state of mind of the participants.
These and many other extraneous circumstances that have no direct bearing on the mediation process itself will affect the attitudes of everyone who engage in the discussions and the encounter of the mediation.
Having a more direct impact prior to the meeting of the participants is the attitude and knowledge each party has about the mediation in which they will participant. This is especially true if this is a first time experience where a strong degree of skepticism is likely to rule the day.
Participants in mediation bring with them attitudes as varied as are the individuals who come into the sessions. Some are intimidated and appear to be withdrawn. A few individuals may be tempted to approach mediation from a posture of over-confidence. Either extreme position in attitude should be an important signal for the mediator to note in all of the proceedings of the mediation.
Properly reading the attitudes and responses of the participants is an important skill the mediator must develop. Evaluations must be made early, and mid-course corrections must be made often. All phases of the interaction must be carefully observed if a satisfactory and mutually advantaged resolution is to be achieved.
What do disputants in mediation expect from their participation in this activity? Whether expressed or not the parties do have expectations. Do they anticipate results that will be satisfactory, or is the party participating because they have been led to believe this is “the right thing to do?”
These expectations are based primarily on information previously received. Perhaps those who encouraged them to accept the role in mediation, or others who have been involved in mediation have suggested what could be expected. Hopefully no one has been oversold or led to believe that mediation will be a miracle-working wonder to solve all of their disputes.
Make no mistake, the probability of success in mediation should be a matter of great comfort, based on the record of past successes. However, everyone must remember that mediation is work – all involved must effectively contribute their fair share!!
If a disputant enters mediation over confident, based on an absolute belief in their personal power, or because of excessive confidence in their position, they are likely set up for a serious disappointment. Such an extreme position will seriously jeopardize the possibility of an acceptable resolution for everyone!!
The most important and acceptable expectation for all participants in mediation is that success must be based on a willingness for everyone to contribute. There must be an open discussion exhibiting a good faith exploration for all aspects of the question. This principle – a confidential open discussion demonstrating good faith – cannot be emphasized too much for disputants who are honestly seeking mediation that will provide a genuine resolution.
When participants in mediation enter the same general proximity, and engage in their first encounter with each other, they immediately form opinions. These opinions are based on their perception of each other. Participants begin quickly “taking a bead” on one another.
Judgments by people involved in human interactions are quickly formed – in fact, almost instantaneously. Roger Ailes, a former advisor to Presidents, and now head of the Fox News Network wrote: “You’ve got just seven seconds to make the right first impression.” In this brief period of time, an individual gives numerous clues through facial expressions, gestures, stance energy, and pitch and tone of voice, to loudly express his feelings.
In mediation, like other interactions, participants study each other quickly through all of the signals mentioned. Verbal and non-verbal communications speak loudly in the mediation process. Each participant, consciously or unconsciously, is carefully studying the other party involved in the interaction.
A double responsibility is placed upon the mediator. They must develop their skills to read the perceptions of all participants, while at the same time remembering that the parties, too, are studying them. The disputants may be tempted to quickly judge the mediator as impartial or unfair simply by a perceived moment of inattention, or some innocent comment. Because the mediator is responsible for facilitating the process, they must seek in whatever means possible to enhance their ability to study the perceptions of the participants while at the same time guarding themselves.
Both time and experience will prove to be a great teacher for the mediator in this endeavor. Obviously, these judgments are subjective, and must be evaluated with care and caution. Not every effort to read perceptions about other people is entirely accurate. “In the heat of battle” the mediator must exercise restraint, before jumping to judgment, and therefore make repeated efforts to discern exactly what is going on.
A mediator must learn to develop more accurately the ability to read the perceptions of participants in mediation. This will prove to be a skill that is of immense value in the process of helping facilatate discussions toward resolution.
Every mediator can recite instances where the face-to-face encounter of disputants in mediation has produced remarkable and challenging responses. How often after hearing one disputant set out his statements about the dispute, has the other responded, “I didn’t know you felt that way.” Many other similar comments have resulted from the two disputing factions meeting face to face in the encounter, and “seeing the whites of each other’s eyes.”
Reaction to Behavior
Reviewing the encounter process in mediation to this stage, a definite series of transactions have occurred. The interaction between the participants is conditioned, in part by events occurring during the approach to the mediation. Attitudes have been molded by pre-conceived expectations about the mediation experience.
Perceptions and judgments about other participants (including the mediator) have been formed by impressions almost instantly concluded. Now begins a process of reaction to behaviors, observed or perceived, in the words, expressions and conduct of others participating in the exploration of mediation. Cooperation or negativity will vividly manifest themselves. Each will be obviously apparent. It is noteworthy that when feelings are particularly on edge, any misstep by one party or the other will likely result in unpredictable consequences.
The behavior of participants in the human encounter is a set of learned mannerisms. Seemingly, individuals subconsciously become aware of each responsive behavior appropriate for the occasion. Inappropriate responses (responses that do not follow the expected plan) will lead to an escalation of inappropriate conduct toward the other party.
Behavior between the participants is reciprocal. The conduct of one party will respond to the behavior of the other. The empathic process whereby each participant anticipates the behavior of the other, allows each one to modify their personal behavior to the predicted behavior of the other party.
Awareness of this predictable and reciprocal behavior between participants in mediation will aid in several ways. First, discussions will proceed more smoothly, and second, behavior that might prove to be dangerously provocative may be avoided. The skill of the mediator must be particularly acute to read any sign of problems or potential movement of the parties – either for possibilities of resolution, or a hardening of positions. Knowing when to act and when to withhold intervention will frequently require the patience of Job and the wisdom of Solomon.
Results in the marketing enterprise are primarily based on the concept of “sale” or “no-sale.” This is true simply because management must make judgments based on the bottom line. In mediation, results may be considered favorable if only a degree of success is achieved.
The result of the mediation encounter is always the apex of the entire process. The results can be varied – resolution, with a signed agreement accepted by all parties; a stalemate, but a realization that discussions were beneficial and an open possibility for future explorations or resolution; or a total disconnect where dissatisfaction reigns on the part of everyone. Judging from the past results of most mediators, the latter situation is a highly unlikely result from a properly facilitated interaction with disputants reasonably interested in achieving resolution.
Even without resolution, if the parties have attained resumption of discussions and negotiation, the mediation is successful. If even a partial improvement has been achieved in restoring relationships (agreeing to disagree), the mediation must be evaluated as beneficial.
Of course, if a satisfactory resolution is signed, parties enjoy restored relationships, and activities are resumed where they were shut down at the point of conflict, the mediation must be deemed most successful.
The final stage of the encounter of the mediation process is the necessity of an Evaluation of the Results. The evaluation is a natural aspect of every encounter. Where the evaluation is not a publicly discussed item, it is at least a subconscious study of the participants.
Customers leaving a store may say to themselves after an experience of poor service, “I’ll never shop here again!” A particularly pleasant experience will probably result in the customer saying, “I’m glad I found this place.”
Employees and management are also drawing their own conclusions about how they evaluate their marketing interaction. Good experiences will mean the employee retains his job (with possibilities of a raise), and management knows profits will be acceptable.
In mediation three parties are significant to the evaluation: the mediator, disputant A, and disputant B. Remember, at times mediation may actually involve more than two disputing parties.
The mediator’s evaluation is more of an introverted examination of his participation. Questioning must have to do with fairness, adequate facilitation of discussions, enabling parties to fully express themselves, and keeping the encounter a safe space for all parties. Only by thoroughly evaluating every mediation encounter will the mediator have the insight necessary to maintain a personal standard of growth.
Each participant in the mediation will evaluate the session more in relation to his or her personal outcome. Did they fully explain themselves? Were they fairly heard? Did they truly listen to both the other disputant and to the questions of the mediator? Can they see themselves in a restored relationship with former disputants?
Mediation is a process of human encounter from beginning to end. The process of human interaction is the same in every occasion of the meeting of people! The more attention given to this interaction, the greater will be the value of this service as a means of providing due consideration to the facilitation of discussion and achieving resolution. Additional study should be made of every step with a view for improving both the process and the outcome.
The role of the mediator is of prime importance. It does not matter how the mediator chooses to proceed in the conduct of the mediation process, the interaction among people involved in the session is exactly the same. To fulfill the commitment every step along the way the mediator must study this process and their participation.
The goal is simple – make the mediation process the most effective tool possible for the resolution of conflicts among parties in dispute! To achieve this goal the mediator must continue to study the dynamic activity of interpersonal interaction in the mediation process.