Back in the early 80’s when mediation was just taking hold as an alternative to court, joint session held first chair. As time went on, the time and cost of mediation increased and along with increases came a major distraction— waiting.
According to the Webster’s College Dictionary – waiting means just that, waiting and inactivity. We’re stationary in anticipation of something.
So as the world turns in mediation the parties wait. When, How, Why do they wait?
When……during mediation and separate session.
How…..during separate sessions. The current mediation culture standard. Plus there is literature about joint session being dead. And evaluation is now the big thing in mediation.
Why……because either their counsel or themselves, or the mediator gave them an option or said they would be going to separate session. They made the choice. Now the parties pay for it.
That option, choice of joint or separate session, exists because of the previous training of many of the mediators. In joint session it’s tough to be maintaining a zealous advocate pushing for the wants of both clients. In separate session it’s much easier, one party to talk to, and that’s confidential. The lawyer can make sure the mediator takes the message to the other party. A never ending loop of messages and waiting.
So here we are creating the perfect storm. The mediator shuttles, without guarantee of a timed return. The result? Waiting. Anxiety. Trepidation, Authenticity, “What will I hear from the mediator?”
It (waiting) happens everywhere, standing in line, why is this taking so long? For the first COVID shot we waited for four hours( the county health department was the only administering agent) and the line extended three hundred yards behind us. When the doors were about to be opened we were issued numbered cards, 206 and 207, all it represented was that there were 205 people ahead of us and they said, 900 after us. Distractions, although different occurred by way of conversations with those around us or cell phones. Yes, it passed the time until the doors opened and the line moved.
In mediation, distractions take away spontaneous and thoughtful response. When the mediator returns to the other party, a new conversation begins. The mediator talks and the party listens and then they reverse.
What might happen in mediation when parties wait? There can be a build up of anxiety, aggression or fear, or anticipation of wonder what is being said “over there.”. Why hasn’t the mediator returned? What’s taking so long? “ I told the mediator what I needed.” The parties are sitting in a room focusing or distracting themselves. Either way time is moving ahead, and we know time is money.
Many mediators poorly manage their session time. Too much time with one party, not enough with the other. Or purposely manage the length of time before returning to the other party.
In a perfect world, joint session has the mediator’s caucus, when needed, maybe for 15/20 minutes with each party. But the world is not perfect, shuttling and parties waiting for an hour or more. It doesn’t appear waiting concerns anybody. But it does. To prevent concern there are suggestions to distract the party while waiting. Bring a book, crossword puzzles, and of course everybody carries a cell phone. There may be discussions with the party’s counselor, or not. Tension and doubt, we do tend to think negatively, creep in and muddy the brain. Clear thought may disappear. And there is always the evaluator telling the parties what the solution should be. And sometimes “the impasse” where the parties are not convinced of the selected solution. Maybe, there was no trust in third party presentations?
All are distractions. Distractions which may cause anguish, despair, anger, and a host of thoughts leading away from focus and concentration. The science says for some people refocusing on the conflict is difficult.
All the waiting is unnecessary and problem causing. The parties in the traditional mediation process are at the same table and after opening statements stay at the same table and self determine their results. Mediators do have to learn how to lead the parties at the table.
Why move to separate rooms? Does the mediator fear loss of control? Or does the mediator want to evaluate and be the conveyer of the solution? Most attorneys hang with their law school training – zealous advocacy. This may show in working as the mediator. They have to appear to be doing something and they can’t adjust to being a listening mediator.
Also, what hasn’t been considered is that the mediator’s conversations with one party represent the mediator as the other party in the conversation. No wonder there is so much commenting about compromise in mediation.
When there is self-determination by the parties the options become the key to solutions. They are non-judgmental and eventually make sense and suggest a solution.
And then who thinks about loss of dignity and or giving respect? The parties hold the answers and should be given the respect of speaking for themselves. It’s a definite shift in perspective by the current culture. “The mediator is doing all this work for me and what’s taking so long? I can do it myself, but I chose not to, my mistake. We should be doing this ourselves. We have our need to end this and want to hear theirs. And I’m sure they want to hear mine.”
But many, many times joint session doesn’t happen. The process starts in joint session for opening statements and incorrectly moves to separate session. Mediator neutrality disappears and judgmental evaluation begins to take hold. Frustration appears and is promoted by the suggestions of compromise. Why else would the mediator ask about the positiveness of their position? Or attempting to compare their needs versus results in court. Creating doubt in the party’s mind.
The waiting begins and just maybe stress and uncertainty begin. Why suggest distractions for a process that should involve self-determination?
Eliminate the waiting and what is there? Self-determination by the parties. The flow of ideas, options, and the pursuit of agreement and maybe, resolution.
And one more thing, all cell phones are shut off, or put in a holding tray til after the session. Several distractions are removed and irrelevant no need for books, magazines, or crossword puzzles.. Joint session is where progress happens. The options flow and the steps toward progress are made…. no waiting…..
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