Achieving the Promise of Mediation

The keys to releasing the power of mediation lie with you, the parties. Unlike judges or arbitrators, mediators possess no decision-making power to resolve disputes. The promise of mediation is that you and only you, the participants, have the power to fashion a resolution to your conflict. Mediators are facilitators whose sole task is to assist the parties to reach resolutions both can live with. But how do we release that power?

Those considering mediation must accept open communication as a fundamental requirement of successful mediation. Oftentimes people embroiled in conflict have broken off communications as a way of avoiding escalating tensions and experiencing yet another unpleasant outcome. Weeks and even months may have elapsed since their last attempt at meaningful communication. When shared parenting of a minor child is involved, it is not hard to see the tremendous disadvantage the absence of communication creates for all members of the family. This communication void becomes a prescription for further misunderstandings and problems extending far beyond the initial conflict.

To unleash the promise of mediation, you are encouraged to trust the mediator to carry out her/his responsibility by facilitating, but not brokering communication. Brokering or shuttle diplomacy often referred to as “caucusing”, inhibits open communication and may enable the mediator but not the parties. As Gary Friedman and Jack Himmelstein, distinguished colleagues at the Harvard Law School Program on Negotiations, wrote about caucusing, “… the mediator ends up with the fullest picture of the problem and is therefore in the best position to solve it. The mediator, armed with that fuller view, can readily urge or manipulate the parties to the end he or she shapes.”1 A mediator-shaped resolution is no better than a judge or arbitrator’s resolution and should be avoided as an undesirable outcome outside the purview of facilitative mediation. The preferred approach is for the parties to “own” both the problem and its solution by communicating their interests, feelings, and needs directly with each other. A skilled mediator will be alert to highly sensitive, combustible issues and will intervene appropriately to mitigate the parties’ natural tendency to attack, defend, and counterattack.

Parents should come to mediation prepared and unafraid to communicate with each other by keeping the main principles of the classic and popular paperback Getting to Yes in mind:

• Focus on interests not positions
• Be tough on the problem not the people
• Use objective criteria
• Invent options for mutual gain

Achieving the true promise of mediation is almost entirely dependent on the parties’ willingness to communicate. Ownership of the resolution through communication and understanding is the goal!

FOOTNOTES

1 Friedman, G., & Himmelstein, J. (2008). Challenging Conflict: Mediation Through Understanding. (pp. xxxv-xxxvi). Chicago, IL: American Bar Association.         

2 Fisher, R., & Ury, W. (1981). Getting To Yes. New York, NY: Houghton Mifflin Co.

                       

Charles Hill

Charles A. Hill is a Tennessee Supreme Court "Rule 31" Listed Mediator.  He is a member of the Board of Directors of the Nashville Conflict Resolution Center and is authorized to practice in both Tennessee and California. MORE >