Well, I was ready to bring my shovel for the next dig, but when I looked down I realized my shovel was too small and I had to bring in the back hoe, again.
There is an old proverb, “The gem cannot be polished without friction, nor man perfected without trial.” Who knows who authored it, what is important is this quote applies to the traditional mediation effort.
Much is written on what a mediator should do, must do, and be ready to do. Be neutral, be unbiased, know the law, be trusted, and on and on. Of course this is all good and supposedly, it’s in this new culture, too.
But where does one practice to be good? Surely no one thinks of being in front of the parties as practice. Observing is a form of practice and when that’s possible (rare) it can be helpful.
In mediation training, there is a section for role playing, or there should be such a section in every training course. Funny though, many believe role plays are a waste of time. It’s just acting they say. Maybe it’s the part about dealing with other’s ideas and emotional moments that give rise to doubt, and remember fear in the mediator and the party. In role plays sometimes great emotional moments are captured and the mediator actor learns a tremendous insight and becomes more aware of the mediator’s role and so to do the observers.
The fact is there is much room for mediator psychology, listening, and open ended questions, plus understanding of the conflict. Read all the books and articles you want to, but if there is no practice or role play nothing but somebody’s words and ideas will become your ideas, good or bad, who knows. Getting the “feel” of conducting a mediation is done through role plays. Timing, what to listen for, when to question or reframe, is the purpose of the role play. Awareness of the parties’ emotions is very important and not to be feared.
It is important to have the feel and alertness to any nuance of the party in a traditional mediation session. We provided much time for role plays. Many skeptics got converted to realizing that traditional mediation works and it has many benefits. Especially in those who have said they have participated in 200 or 300 mediations and therefore know how to conduct a mediation. Remember, what you think you know prevents you from learning and being tested.
During our role plays in the traditional mediation process in civil training, we used a popular video, nameless for these purposes.
Many trainers will show the video and then discuss the good, bad, or the indifferent. Since it was all about separate sessions and how well the experienced mediator did evaluation to get an agreement, we conducted the role play in joint session and then showed the video. Some interesting responses were expressed.
The case: A computer manufacturer wanted representation in South America. Tried to do it themselves but with little progress. Hence, the interviews. A company was selected, agreements made, time frame for performances all structured, and the computer models to be sold. After six months it fell apart with the sales distributor suing the manufacturer for $10 million in a US court. Mediation was approved and the meeting began.
Before we viewed this video the trainees did the role play in joint session.They were given scripts and some actor character suggestions based on some of the video. Normally, there were enough trainees to run two roles plays. But we found it better to have an audience of the non participants. At the end, the mediator and the players had to rise and say what they thought they did well and what they thought could use improvement. The observers made their comments, too. In all a discussion was conducted among the entire class on the good, the bad, and the ugly.The trainers spoke last and did the final critique putting a positive spin of the effort of all participants in the role play which included identifying the party’s emotional comments and the appropriate mediator responses.
Two hours later, in the role play, the agreement was made and actually was better than the video, but nobody knew at the time though the trainers knew what had happened. After the review and critique. Lunch break and then it was time to watch the video. Popcorn and all.
In the video the mediator evaluates the situation and points out to the manufacturer that the other side has firm ground for the lawsuit. The mediator now suggests how to wiggle a bit and reduce the demand for the ten million. Enough to say it gets settled. For the video, the shuttle and the evaluative effort of the mediator worked as proscribed, but much was lost in this separate session effort.
Class reaction was terrific to the fact that joint session created a trust environment not evident in the video. In the training role play there was a willingness to lay all the cards on the table (although obstacles were part of the role play). Upgraded models were also included. The SA company suspected they had the lowest performing models and wanted the upgrades and all future upgrades. The money was reduced and the sales territory was increased. The parties reviewed their options together and had input from their counsel on all points. Each wanted the best deal possible with the manufacturer not wanting to go to court.
For the distributor, getting top of the line models, prompt shipping, and tech support, and cash reimbursement for all the problems caused by the manufacturer’s delays in performance, and also future trust. Both parties benefitted from the mediation. A contract was made to improve their own internal paperwork flow, manufacturing schedules, and product shipping. The mediation worked in setting up future trust in the event of future problems. The parties were more trusting of each other and were confident the agreement would work. The manufacturer benefited in having a new SA territory open up and a distributor they could trust to do the job.
In our role plays seldom was there anybody in the room who ever worked in the computer field, although several had sales experience of office products. Professors and lawyers were in the majority most often and it was easy to see their struggle with joint session.
They had to admit there were emotions in the room and it was a good thing. But they also had to admit that trust and open lines of communication would be the foundation of a good relationship for the future and these were self-determined.
Everyone noticed that with the mediator shuttling back and forth created a lack of trust in each party. The distributor kept asking about the money and the manufacturer kept saying we won’t pay that kind of money. Some would say that the mediation was at impasse. In joint session the money, and the why, was openly discussed with the result agreed to by both parties.
In every separate session, or evaluation mediation there is always doubt. In the present and for the future. Self determination, the parties discussing the issues is the most important aspect of a traditional mediation. We get not only agreement but resolution, and a more lasting relationship.
In 2009 a study of med-mal (medical malpractice) Perceptions in Litigation and Mediation by Tamara Relis, PhD , showed that it wasn’t about the money but more the principle of medical care and the absence of the joint session.. Many of the doctors wanted to be in the mediation but were discouraged by their legal counsel. Their reason was it’s about the about the money and doctors have no say in the amounts if any to be paid to the plaintiff. The sad part is that the real benefits of understanding what caused the conflict become lost in the separate session . Solution became more important than understanding the reasons it all happened. Resolution, the emotional part of the conflict was lost.
Think about it, mediator neutrality is tossed out every time there is evaluation or a separate session and the parties lose……time for a rest…