Having been involved in over 2,500 mediations, facilitations, and negotiations in my career, I thought what are keys to a successful mediation? Revisiting this I want to offer you some thoughts that may help you. My experience is largely oriented towards the federal judicial system, working with experts and clients, administratively with the IRS, and as a volunteer in housing court, conciliation court, with neighborhood disputes, in public housing and other venues including between gangs. I have found that alternative dispute resolution focusing on mediation works, saves time and money, is confidential, and it is successful in implementation because the parties produced a solution that they can both live with going forward. What follows are some key elements and what I have found as best practices that you may find helpful too.
Defining the problem(s)
You are predisposed to think of yourself as right and the other party as wrong and potentially as the villain. This is bias everyone carries. Knowing this you are predisposed to identify the problem to fit what you would like as a solution. This is normal. If you are with counsel, they will help you present the facts and law in the best light for your position. They are advocates for your position. That is their role.
Working with the parties a qualified, trained mediator will build trust with each of the parties before the mediation. The mediator will make sure to listen actively and reflect to you what the mediator understands as your position, the issues, the facts, the emotion around the issues, and your interests. The mediator carries out the same actions with the other party.
Designing the process
The process is reflective of the parties’ emotions, relationships, and hostility towards each other. Generally, there is an opening commentary and time for questions (not an interrogation – the mediator will stop that right away) in a joint session.
Each party has a chance to make an opening uninterrupted statement.
After that, the parties may stay in the same room, or the parties may be asked to go to separate spaces with the mediator shuffling between the two parties.
With virtual sessions there will be a time for practicing the technology ahead of time and a time set aside before the first session begins to make sure the parties are comfortable with the technology. A back up system will be identified (for example smart phones) in case there are issues with a computer or a need to simply call in on a phone line should a virtual visual alternative not be available.
It is important to know who the parties are with what interests. For example, in a labor dispute with a union there are at least three interests. Those are the employer, the employees, and the union. The union has to save face with the employees, and keep in mind these are elected officials. As another example in a closely held business being sold to the next generation there are the parents, individual children in and out of the business, sibling rivalry of who did mom or dad love best, and other concerns that may have happened along the way.
The mediator has to be attentive to the interests of everyone.
The key is to manage expectations, have the parties have confidence in you as the mediator as an unbiased third party.
The mediator practices patience and flexibility
This is an informal process on purpose. The mediator needs to center themselves ahead of time. I personally consider prayer, meditation, reflection, or yoga as a way to practice mindfulness. This helps me more clearly focus on the participants.
As a mediator I explore sunk costs of what has been expended to date, and work with the parties to focus on today and what would help them resolve the situation going forward. The mediator needs to be creative with their questioning to help the parties see the issues from the other perspectives considering all stakeholders. This involves listening actively.
This is one of the mediators most important tools. The mediator needs to paraphrase, summarize, ask open ended questions and empathize. This takes planning and practice. Experience with multiple mediations helps the mediator with this process. It is natural for anyone to become judgmental and in to want to offer solutions. Instead, the mediator asks questions of the parties that may lead them to think of the situation differently. As a mediator that needs to remain neutral the mediator must check emotions that may be entering the process trying to take over and ask himself or herself why that feeling emerged. Then the mediator needs to give himself or herself positive self- talk and practice self-distancing to remain neutral. The mediator works with the parties to demonstrate that the mediator understands the problems and the concerns of each side.
The mediator may consider multiple approaches. For example, if participants are in different rooms, the mediator may consider bringing key players into the same room. Speaking directly may overcome differences. As another example the mediator may consider asking one party what they see as the strengths of the other party and then share this with the other party.
It is important to help humanize the other party.
Typically, the mediator allows experts to speak with one another with the mediator present. At times counsel may ask the mediator for ideas. As a participant consider what you might ask to help make your thoughts their idea. Keep in mind that this is a very emotional session. Relating to the other party with some personal positive commentary and kindness related to pets, children, grandchildren, travel, education, or similar unrelated commentary may help alleviate tension and help the party become more relaxed and comfortable.
In a recent mediation with attorneys, experts, and the decision maker present both parties were fired up to begin the session. I simply asked each expert to take about three minutes and share something positive that had happened in the last thirty days. One expert shared about the adoption of their son and daughters-in-law first grandchild. The other expert shared about an older daughter being accepted to her first choice of six universities that she applied to and how the younger sister was living vicariously through this process hoping it would happen to her someday too. This helped to relieve a lot of tension before proceeding.
The mediator helps the parties think creatively. The mediator helps the parties define the problem so that they can focus on the problem. Educating the parties on the process, listening actively to understand interests of all of the participants and being patient and flexible regarding the needs of the parties is the primary role of the mediator. By helping to diffuse escalating tensions, by addressing emotional needs and introducing personal anecdotes to relieve the tension of the parties this helps the parties to work towards a solution that works for them. My mission statement in part states: Do the right thing. Do what it takes. Have fun along the way. That is what I do.
About the author
Mike Gregory is a professional speaker, an author, and a mediator. You may contact Mike directly at firstname.lastname@example.org and at (651) 633-5311. Mike has written 12 books (and co-authored two others) including his latest book, The Collaboration Effect: Overcoming Your Conflicts, and The Servant Manager, Business Valuations and the IRS, and Peaceful Resolutions that you may find helpful. [Michael Gregory, ASA, CVA, NSA, MBA, Qualified Mediator with the Minnesota Supreme Court]