Incremental Progress in Mediation: Baby Steps, Strategic Mediation & Less is More

Taken from Jim Melamed’s training manual, these introductory excerpts suggest that progress in mediation is necessarily incremental; that the mediator should in fact strategically focus on baby steps of progress that can be made; and that, in effectively mediating, the mediator should seek to “only do so much as is necessary” to stimulate available progress so as to not over-direct the process and allow participants to claim progress as their own.

Baby Steps

Given a “declaration of conflict,” just how does a mediator best assist parties to reach and enter the “circle of agreement?” The short answer is “not all at once!” In other words, there is no single question or act that will suddenly leap-frog participants into spontaneous agreement. Rather, a mediator learns that progress toward agreement is almost always made gradually and, if the mediator is skilled (and fortunate), steadily.

To the extent that incremental progress is the best we can do, it is then these incremental “baby steps of progress” that we seek, and a mediator is ever-interested in skills, techniques and approaches that will assist participants to take such “baby steps” toward agreement. A helpful question for a mediator to ask him or herself is: “Specifically, what can I do now that will best assist these participants to take their next biggest baby step forward toward agreement?”

This concept of focusing upon the gradual process of incrementally assisting participants to make progress toward agreement relates to the issue of just what is “success” in mediation? Rather than focusing on achieving a complete result at a particular time, a mediator is better advised to accept as success successively helping participants to take “baby steps” toward agreement. It is the nature of things. Don’t fight the river. We as mediators must thus ask ourselves: “What can I next say or do to best assist these participants to make their next biggest baby steps of progress?

Strategic Mediation

The answer is what I call “strategic mediation:” We as mediators want to do the thing that we believe will best assist participants to reach their next incremental agreement. If we are always doing this, doing that which we calculate to best assist the participants to take their next “baby step,”, we are well-focused to maximally assist participants overall. Ask the question: “Am I now doing the exact thing that I believe will best assist these participants to make their next greatest progress toward reaching overall agreement?” If the answer is “no,” then you should likely be doing something else.

This strategic mediation approach, and the mediator’s constant self-questioning as to whether what he or she is doing is the best possible thing to make incremental progress, will, overall, lead to a most efficient and economic mediation process. In this sense, this strategic mediation conceptual approach has public policy implications. If we as mediators are able to identify the skills that best assist participants to make efficient and economic incremental progress, the case for the growth of mediation as a cost-effective choice can be most capably made.

Less is More

Just as it is suggested that the mediator should focus on available incremental progress and what he or she can next do to support this, it is also suggested that the mediator “only intervene so forcefully as necessary to get the job done.” In this sense, “less is more” in mediation. The less that the mediator can do and still get the desired incremental progress, the more participants will own the progress that is made as their own and not imposed upon them.

Thus, for example, in working with doubt and dissonance in mediation, the mediator is better off “using a feather rather than a sledge,” if the mediator can get the job done with a feather. Similarly, the mediator gently floating options for consideration, rather than specifically recommending solutions, is an example of this understated approach. Rather than saying “Why don’t you . . . ,” the mediator can say: “Might one option, among others I am sure, be something along the lines of . . .” A wonderful approach for so gently raising possibilities is the use of “normative stories” (discussed in detail later in this manual). Introducing possibilities with: “It’s non uncommon for folks in your kind of situation to consider . . .” or “Among the options people in your position commonly consider are . . .” are elegant ways of introducing possibilities without creating resistance. When so talking about other similarly situated people, mediation participants eagerly await the information. They don’t resist the information as you are not talking about them, but others. It is “gossip.” People in conflict love gossip about how others in their situation have resolved things.

This type of “less is more” approach also has the advantage of “always leaving an out.” Mediation is not too different from learning to drive. Perhaps you may remember the driver’s education text or videotape saying: “always leave an out.” As a mediator, you always want to have a planned next move if a participant, or both or all participants, are resistant to a certain possibility. In contrast, if a mediator gives directive personal recommendations, advice, or opinion, the risk is that there will be no elegant next move. In a multi-issue mediation, the mediator simply can not afford to risk his or her facilitative capacity by offering directive personal recommendations, advice, or opinion. To clarify, while it may be perfectly “ethical” to offer personal recommendations, advice, or opinion, the problem for a mediator is that doing so does not leave you with a much needed “out” and a planned next move should resistance be encountered.

                        author

James Melamed, J.D.

Jim Melamed co-founded Mediate.com in 1996 along with John Helie and served as CEO of Mediate.com through June 2020 (25 years).  Jim is currently Board Chair and General Counsel for Resourceful Internet Solutions, Inc. (RIS), home to Mediate.com, Arbitrate.com, ODR.com and other leading dispute resolution sites. During Jim's 25-year tenure,… MORE >

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