Mediation: The Human Face of Conflict

The role of mediators is to help people through conflict.

Mediation may be seen as a process that evolves over four phases. It begins, usually in a joint session, and usually ends in a final joint session.

After the first joint session, the mediator goes into breakaway (one-on-one) sessions with the participants. The goal is to prepare the ground for them to work together to find solutions during the fourth phase of mediation. 

The therapeutic value of a private one-on-one session means that participants are more likely to confide in the mediator. 

It gives the mediator a unique or third perspective of the conflict and help her identify and resolve burning issues or potential misunderstandings.

However, the purpose of the private sessions remains to get the participants to work together to find solutions (in the same room) during the fourth phase of mediation.

The evolving phases of mediation are:

1: Opening in a joint session.

2: Exploring concerns, interests, and needs in a private session.

3: Exploring solutions in a private session or a joint session

4: Finding (negotiation) solutions in a joint session.

To understand the different phases of mediation, I use an example of an actual dispute between a small-scale farmer and a large-scale farmer.

The large-scale farmer confiscated the small-scale farmer’s goats that had strayed on his farm. 

The imbalance of power between them has created a conflict trap for both farmers. In this trap, both protagonists believe that they are being victimized.   

The small-scale farmer internalized the power imbalance to mean that the large-scale farmer would never hear him. 

He, therefore, sees no point in talking to his neighbour about the goats and does not have the resources to pay a lawyer to speak for him.

The conflict trap is the cause of low self-esteem, low-level motivation, suspicion, anger, and ultimately self-harm. It underlies the chronic dysfunction that many faces in their lives. 

Mediation offers a reprieve from the trap because the farmers can speak their minds as equals, despite their different status and power. A better environment to clear up misunderstandings is hard to imagine.

It is a boost for the self-esteem of the small-scale farmer. Next time he may not need mediation. Instead, he may call his neighbour. 

For the large-scale farmer, mediation lowers the risk of retaliation by his neighbour and creates the prospect of an improved relationship between them. 

THE FOUR PHASES OF MEDIATION

Phase 1: Opening in first joint session

The first phase of mediation is thus where the participants speak their minds.

The mediator speaks to them with equal deference, eye contact, and attention. He encourages them to speak their minds.

The small-scale farmer feels empowered because he sits across as an equal from his powerful neighbour. Finally, at last, he can speak his mind to him.

Mediation potentially transforms people who lack the confidence to call the powerful to account and lack the resources to pay lawyers.

Winston Churchill famously said that courage is what it takes to stand up and speak, but courage is also what it takes to sit down and listen. 

Phase 2: Exploring concerns, interests, and needs in private sessions

The mediator has one-on-one conversations (minimal note-taking) with the farmers in their breakaway rooms in the second phase. But, again, the farmers do most of the talking.

The purpose of this phase is to help them explore and consider their concerns, interests, and needs.

The mediator reminds them that it is safe to confide in her, as she will not disclose anything to the other participant without express permission.

She may ask the following open-ended questions:

a. Before we get into the details of what happened, do you care letting me know more about yourself?

b. Where did you meet XXX? (Explore the relationship.)

c. I heard in the joint session that you are angry about an incident. Do you care to tell me more?

d. What impact has the conflict had on you?

e. What is most important to you right now? What do you want from the mediation? (Big picture and not specifics)

f. Is there anything positive that you want me to share with XXX?

g. Do I summarise your concerns correctly by saying that…………?

The questions are intended to begin a conversation about the situation that the farmer finds himself in.  Mediators have different styles to explore the concerns, interests, and needs of their clients.

During the second phase of two or more private sessions, the mediator helps the farmers identify a list of issues that require attention. 

Often, one of the issues raised requires immediate attention before the farmers can engage each other constructively. Burning issues, such as insults, are difficult and complex to deal with, even for experienced mediators.

However, effective techniques exist such as a sincere apology, statement of regret, and clarifying of misunderstanding (clearing the air) to help the participants overcome burning issues.

At the end of the private sessions during the second phase, the mediator requests the participants to apply their minds to solutions.

Phase 3: Exploring solutions in private sessions 

In the third phase, the mediator also has one-on-one conversations with each of the farmers in their breakaway rooms. But, again, the farmers do most of the talking.

The purpose of this phase is to explore solutions that address their concerns, interests, and needs. The mediator should have earned their trust by this time, an essential ingredient for a successful mediation.

The mediator reminds the farmer that it is safe to confide in her, as she will not disclose anything to the other farmer without her express permission.

She may ask open-ended questions in successive private sessions, such as:

  1. What do you want or need from YYY?

  2. What are you prepared to give her for what you want?

  3. Is there anything you can give or do for YYY that won’t cost you much?

  4. Are there any other options you want to consider?

  5. How do we move from here?

The questions are intended to start a conversation between the mediator and the participants. They are not a magic formula.

The mediator considers during phase three whether the farmers are ready to hear (apply their minds too) each other’s ideas or solutions. Sometimes participants tell the mediator they want to get into the room with each other and start negotiating. 

Techniques such as preserving confidentiality, clearing the air between the participants by conveying information to another, and appropriate reality checking during private sessions, are commonly used to prepare them for the fourth phase. 

A mediator quickly falls into the trap of becoming excited about what he believes to be an ideal solution for the participants and, as a result, steering them towards a solution that may not be the best solution for them.  

It devalues mediation and undermines the ownership of the participants in the mediated outcome.

Phase 4: Finding solutions in a joint session

In the fourth phase, the mediator brings the participants together for a joint session to have a conversation with each other about finding solutions.

The purpose of this phase is to help them find the best possible solutions.

The farmers have an equal opportunity to put their ideas on the table. The mediator’s job is to ensure that they share ownership in the mediated outcome. 

In this phase, the participants, addressing each other directly, can generate value that would not have been possible without first passing through the earlier stages.

They generally resolve the few disputes that are not resolved on the day, at a later stage. 

Bringing the human face to conflict is Africa’s unrecognized yet powerful contribution to mediation.

                        author

Jacques Joubert

Jacques Joubert is a practicing mediator and independent mediation analyst in South Africa. He practiced law in South Africa and Canada, but now specializes in alternative dispute resolution.  MORE >

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