ERRR On the Human Side of Mediation Encompassing – Empowerment, Recognition, Reflection and Respect
An Open Invitation to the Opposing Party
By Sharon Kendrick-Johnson
This article comprehends the lack of human emotions that many disputants experience before going into a mediation setting. These emotions can impact an intended outcome. They can help a conflict come to an impasse quickly if they are not dealt with at the beginning of the mediation. During intake, mediators assess the strengths, and weaknesses of the parties. At this entrance, the decision to use a humanistic approach can be further explored after determining the party’s absence of empowerment, recognition, reflection, and feelings of disrespect from their being. Erring on the human side of mediation enables disputing parties to tap into their inner beings and come to terms with the other party using a more humanistic approach. Approaching conversations can be humanized through the understanding of emotions and how they relate to conflict. The goal of the mediation should be to instill autonomy over the process and improve interactions between the individuals sitting across from each other at the table of confusion, distrust, hatred, bullying, and sarcasm.
“It’s about me, myself and I, and what I want. You are entitled to your own beliefs and wishes. At the end of the session, I will have to leave the mediation and go back to perhaps what I came into the mediation feeling (despair, frustration, anger, uncertainty, and the list goes on). That is not what I came into the mediation to leave with! Therefore, I am entitled to fight my battle to become satisfied. You are showing me no respect. You are trying to over talk me. You are not recognizing my demands. I want to be civil and extend you an invitation to work with me to resolve our issues so that we both can leave feeling empowered, and something that we can work with. I’m reaching for hands across the table.”
Mediation can work. It’s a foundation of conflict for any dispute not requiring a judicial or third-party determination. It can provide a forum and an atmosphere in which we can gain an understanding, become understood, and work together to explore options for a viable, working resolution. By resolving disputes in mediation, we can determine for ourselves what is important and, ultimately the outcome of our situation. We can walk away with a Win-Win solution. The chosen mediator can engage in ex parte conversations with the opposing parties and serve as impartially empathizing, understanding and bring out the best in each of the disputants in the proposed way.
Empower: Emotions play a pivotal role in the process of conflict and resolution. When empowerment, recognition, reflection, and respect are fostered and modeled by the mediator, the mediation becomes more effective, meaningful, and satisfying for disputants. During the intake of the parties, a mediator can quickly recognize emotions and act upon them. Disputing parties’ emotions can be observed with interest and compassion. It is particularly important to show support through empowering the individual parties so that several determinations can be made during the process. The disputing parties need to leave the mediation with something that they are seeking. They need the push to make determinations, to become equally vocal enough to express their concerns and wishes, and to retain ownership of their responses. This creates an opportunity for more communication and responses that leads to outcomes. Unresolved conflict and overpowering dialogue, disempowers individuals and outcomes become dead locked. There is no resolve.
The self-determination of empowerment may often correspond to the mediator’s strategy of empowering the individuals to decide for themselves how they would like to see the mediation progress, how they would like the outcome to proceed, and how they would like to go about resolving the situation. Empowering individuals need to be a continuing effort because disputing parties coming into mediation most likely are feeling disempowered at the onset, particularly stepping into the unknown. When clients feel unable to change something in their life, they need to be supported in finding ways of doing so. Mediators empowering parties presents individual growth for them and newfound personal confidence and strength, as well as the acquisition of new skills. It is a never-ending process. Through creating new ways of communicating, acting and/or perceiving their situation, they move from a state of “being stuck” to a state of being able to create a newfound thought process and a state of mind where communication is extensive.
The decision to settle and the terms of the settlement should come from the parties. It is their dispute, their resolution. They are the ones that will have to abide by and adhere to the terms of the settlement that has been agreed on. Any input of ideas, opinions, advice, or suggestions from others serve to disempower those in dispute. These inputs all inhibit a person's capacity to resolve their dispute and to create new ways of communicating. It also distracts them from the realization that they have the capacity to resolve their own dispute. Their ability to respond is discouraged and they are less able to take responsibility.
The mediator should begin the mediation with private sessions. This will circumvent some of the problems caused by over talking, bullying, and condescendence. This also gives the mediator an opportunity to look for hidden agendas, inconsistency, or coherence and level-headedness in the parties' stories. Such places can then be used to open the parties' stories to the possibility of transformation and transference into more meaningful and constructive conversations that will take the parties to the next step looking forward.
The mediator can then facilitate the construction of positive connotations for the participants. The mediator should seek to assign positive road maps to both parties when seeking explanations for their actions. The approach to communication used and the underlying thinking behind the approaches taken would lead to a reduction in demands at the table. Reach for hands across the table in resolving difficult issues. Be willing to communicate accurately, significantly, and with completeness. Remember that empowerment is a key predictor of outcomes.
Recognition: Hands across the table can begin to meet half-way if the parties can gain an understanding of the other party’s point of view. They have a chance to both be recognized and understood in the mediation forum.
Mediators play an important role in establishing a relationship of understanding, empathy, and trust with the parties in conflict. Recognizing parties’ emotions by the mediator manifests itself to obtain such a relation among the two. Recognize each other for what they’re worth and bring to the table. Just getting it all out, including all the conflicting emotions and information that we must manage, can be as important and certainly better for our psychological health.
Recognition requires empathy. We don’t want to be ignored, to have our opinions or perspectives marginalized or to have our experiences shunned. We don’t want to feel humiliated because we may see the cause from a different perspective. We want to be attended to with receptiveness and have our interests communicated, acknowledged, and recognized. If the mediator nurtures the parties’ ability to recognize viewpoints, all feelings are understood, and their perspectives are supported. Recognition does not mean agreement: it means allowing for the possibility of different experiences and being opened to understanding them. Unless the interests of all the parties are being acknowledged and counted, it can be very difficult to develop effective resolutions.
Reflection: Reflection is not only a description of your past events, but it also involves in depth thinking and realization of the day’s events. It is a means of processing thoughts and feelings about an incident, a difficult day, bad communication, wrong decisions and more. Reflecting on these negative facets gives us a chance to come to terms with our thoughts and feelings about them. It involves exploration and explanation of events. Reflection often involves revealing anxieties, errors and weaknesses, as well as strengths and successes.
Self-reflection is an important part of a mediator’s practice. It includes the willingness for mediator self-reflection as well as mediator nurturing of disputants’ willingness to engage in their own reflection. Mediator self-reflection is critical. Their self-awareness (about how we are experiencing a conflict) and self-assessment enable skill development and professional growth. In preparing for a mediation, self-reflection balances the mediator and promotes being a responsive, rather than reactive presence who can engage well with the participants. The more self-aware a mediator can be, knowing what behaviors are especially challenging, what dispute scenarios are more demanding emotionally, and which conflict styles are less difficult to respond to, the more effective the mediator can become. Self-reflection gives us the avenue to learn about ourselves and our clients. We can also learn about what works and what does not work in mediation.
When listening to participants, they are usually able to describe what actions they have been taking in the conflict. They can also describe what they have seen or heard and how they have interpreted it; however, they often have more difficulty describing their emotions. Yet, conflict is all about emotions so reflecting on the feelings one has can add valuable understanding about why we behave in certain ways.
It is important to be an effective listener to other’s perspectives in order to consider and understand someone else’s feelings. It is important to consider how each side feels in a situation and how each parties’ interpretation can be different. The mediator must pay attention to the act of reflecting in mediation to ascertain what they have been doing in the conflict, what they have seen or heard, what they have thought about the conflict, what emotions they have experienced, and what they want out of the conflict for themselves and others.
Respect: When a mediator treats all disputants similarly and in a balanced manner, respect is established as a core principle of the mediation. When the mediator listens, remains curious rather than judgmental; doesn’t interrupt and ensures that all will be afforded uninterrupted time to speak, respect enters the room on a golden platter. Once respect enters the room because of the mediator actions and remains in the room because of interventions to protect the respect of all who are present, those involved in the conflict begin to engage with each other and to view the dispute differently. This enables conversation to flow, solutions to emerge and the possibility that positions will be softened delicately.
A mediator must often deal with high conflict people and their defensiveness, and, in the attempt to defuse the situation, the mediation often gets emotionally drawn into the conflict by taking the responsibility of the outcome to be his goal. The mediator’s role is primarily one who lends his/her ear to empathize, acknowledge and respect. In respecting ones’ own self, participants in the dispute can enable the mediator to empathize and enable the parties to acknowledge their contribution to the conflict.
The need to understand emotional scarring and provide a dignified mediation for the scarred contributors to the conflict is the noticeable factor of mediation. Mediation helps to bring about an emotional well-being and the disputants can renew their relationship in a healthier manner when they learn to understand the possibilities and acknowledge their priorities. To get disputants to that level, the mediator must have an insight into their emotional quotient and to respect their stand at every stage of the mediation to enable the mediator to help them understand their real need. The mediator must believe in the process and instill belief in the process. That is possible only when the mediator commands respect by the way the process is handled; and, by respecting the parties and encouraging them to understand their strengths.
The introduction and joint session at the onset help to create the semblance of balance. The mediator as the facilitator in the conflict sets the tone by being respectful and demanding respect by demeanor. The tone, language, manner of approach of the mediator, creates respect for the process, and the disputants soon learn to control their outbursts and sarcasm once they realize that respect must be earned. Mediation is the forum to explore and collaborate. Disputants then move from the demand for self-respect to understanding self-esteem to making probable suggestions for settlement which is tinged with reality.
At times we fail to see the larger picture and hence our presumptions attribute a thought which prevents us from respecting the other’s point of view. When one judges automatically and puts the blame on the other for the cause of the event, there are two factors which trigger this attitude: one which is internal based on the individual’s character and the other which is external, based on the situation/circumstance.
Instead of presuming that the other will be/act only in a particular mode, or that will have same views as ours, or look for indicators to substantiate our belief, if we give respect to what the other person says/feels and understand why they are reacting in a particular way, and assure them of their capacity to move on, the disputant, feels that his emotion is respected and is able to forgive and forget or understand what he/she has to do in the circumstances. Building the bridge with the disputants making them feel human and not as people in conflict ought to be the attitude of the mediation.
During the process, when anger and frustration leads to a disputant to be aggressive, an apology by the mediator to the effect, that he/she has been unable to find a proper expression for the hurt that they have, enables parties to get over the emotion. Once, the parties feel that their point of view is respected, they may be able to settle when they get an apology from the disputant or given a way out by the mediator in the form of an apology.
Staying oriented at various levels and consistency are therefore very important in mediation. The hierarchical levels, authority of disputants, and role expectations must be balanced and treated with respect. Respect for the privacy of disputants is the core realm of mediation and maintaining confidentiality increases respect for all concerned with the mediation.
Empowerment is about accountability and trust. It’s when you give disputing parties a certain degree of autonomy and responsibility for decision-making. When mediators empower parties to step up, make their own decisions and pave their own path to success, you create a better outcome culture that both can live with.
Mediators can and must adapt to the needs of the parties, as well as to their comfort and ability. However, my experiences as a mediator strongly support that when a mediation session addresses the human relationship component of the dispute, these cases not only resolve, but resolve in more satisfying ways for all involved, often with more creative and all-encompassing resolutions.
If we forget to bring our humanity into the mediation room, we not only reduce the odds of settlement, but we also deny all present or involved the chance to obtain what is at least a partial cause of the conflict, the emotional and psychological harm experienced by the parties. Mediation can be a process which acknowledges the human aspect of ligation, something that is often forgotten in the courtroom, alternatively improving the lives of the parties while also enabling them the opportunity to craft better resolutions.
From ADRAC- The Australian Dispute Resolution Advisory Council Blog, organized with Shirli Kirschner ADRAC gratefully acknowledges the suggestions and input of Gaye Sculthorpe who kindly reviewed this paper. This topic is a...By Shirli Kirschner