If only two persons attend a mediation and they are both have authority to settle, then only three negotiations take place. They are between (1) person 1 and person 2, (2) person 1 and mediator, (3) person 2 and mediator. The dynamics of this are easy to manage.
More commonly, at least four persons attend, namely two parties and two attorneys, in which case ten dynamic interactions may take place, as follows: (1) party 1 and party 2, (2) party 1 and lawyer 1, (3) party 1 and mediator, (4) party 1 and lawyer 2, (5) party 2 and lawyer 2, (6) party 2 and mediator, (7) party 2 and lawyer 1, (8) lawyer 1 and mediator, (9) lawyer 2 and mediator, (10) lawyer 1 and lawyer 2.
It is easy to draw a cat’s cradle to demonstrate the complex dynamics that exist in the above simple mediation, with only two parties each represented by an attorney.
If this was a dinner party with five friends, the conversation would be a free for all with everyone having a wonderful time. But a mediator cannot afford to have a free for all in a mediation session. A mediation is a negotiation, and every negotiation is (however politely or amicably conducted) an adversarial process. Further, most mediations take place within a larger context of adversarial relationships, or adversarial process such as potential or pending litigation.
If there are multiple participants, i.e. more than two parties and two attorneys in a mediation, the cat’s cradle becomes exponentially more complex, in fact, exceedingly complex. Such negotiations can easily get out of hand. It becomes all the more important for the mediator to set herself or himself as the focal point of all communications, and to control cross-table communications quite carefully, with as much finesse as possible.
No one attends a mediation without an agenda. Every person’s agenda is different.
The mediator must control the flow of communication, or the negotiation will founder. That is why he was hired. With whatever subtlety or bluntness this is accomplished, it is essential. The mediator must be willing to shut off a destructive communication. He/she must also be willing to draw necessary communication out of participants who are keeping silent, even if this requires a private session.
The easiest way to control the dynamics of the situation, without attempting to stifle them, is to have the participants communicate with each other through the mediator. The slight deflection that this requires has an ameliorating effect on the language and the attitude of the speaker. As this is exactly what happens in court, attorneys are used to it.
There are only two kinds of communication in mediation. The first is any communication that keeps the negotiation moving towards clarity and settlement. The second is any communication that tends to torpedo, stifle or impede clarity and settlement. When “bad” communications occur, as they always do, the mediator must repair the damage and move on.
There are only two venues for a communication. The first is in joint session. The second is in private session.
Joint sessions are for participants to communicate positively such facts, attitudes, interpretations, arguments, and offers as will tend to move the parties closer to the goal of settlement.
Individual sessions have two purposes. The first is to permit participants to “vent.” Venting means to express negative thoughts and emotions about the other side. The setting in which such venting takes place must be controlled by the mediator in such a way as to advance, not impede, the purpose of settlement, and this means in private session. The purpose of venting is to get it said and done with. Some people take longer to vent than others. Some people never stop venting on their own volition, in which instance the mediator must make a calculated judgment when to call a halt to it. The second purpose of private session is to discuss what the participants will say in joint session, or what they want the mediator to convey to the other side.
Sometimes a participant wants to express his or her thoughts, emotions, feelings or attitudes directly to the other side. This is the side of mediation that is closest to therapy. The only reason to permit this is if it will advance the settlement process. How this is done is very important. There is a world of difference between on the one hand, explaining how one feels, and on the other hand, engaging in an ad hominem attack on another participant. This can be quite subtle. However much a person is coached, sometimes they just cannot resist turning an account of how they feel into a personal attack. There is a simple rule concerning ad hominem attacks: don’t do it, because it never helps.
These issues do not always arise. Often, the volume and extent of these potentially explosive interactions is reduced or minimized by the parties themselves or their lawyers. Some lawyers prefer keep their clients out of the negotiations, keeping them on hand to ratify settlement proposals. Some parties do not want to take an active part in the proceeding, feeling that is what they retained an attorney to do for them. Also, attorneys often do not want their clients interacting directly with the other side’s attorney. Some clients become terribly frustrated with the other side’s attorney, seeing him or her as the supreme obstacle – sometimes such a client takes the opportunity to call the other side’s attorney a liar; the mediator should put an immediate stop to such “fighting words.”
First published in the June 2008 Edition of “Alternative Dispute Resolution,” the Newsletter of the Ontario Bar Association ADR Section. The Ontario Bar Association (OBA) is the voice of the...By Colm Brannigan