It is not uncommon in our busy practices to overlook the benefit of spending time to reflect on mediations we have conducted and mediations that are coming up. There are lessons in every mediation, whether the mediation was successful or not. Taking the time to think about and evaluate mediation sessions improves our skills as mediators and ultimately helps us provide better services to our clients.
The Benefits of Self-Reflection in Your Mediation Practice
The recent New England Association of Conflict Resolution conference entitled “Purpose in Your Practice” started me thinking about the practice of self-reflection in my mediation practice. Self-reflection in mediation is critical in many different ways and on many different levels. A review of the mediations I have conducted over the years reveals many lessons. We can learn from each mediation. We can learn about ourselves and about our clients. We can also learn about what works and what does not work in our practice. Unfortunately, often in our busy practice, we forget or simply do not take the time to think about the mediation to come or the mediation that has just occurred.
Approaching each mediation as a potential lesson will undoubtedly improve our skills. When I have taken time to reflect on a mediation, I have almost always learned something that was valuable in my later practice. Here is an example.
John and Jan were in their mid- 40’s. They had been married for 20 years with 4 children. John was an executive at a large corporation and Jan was a housewife. They had 4 children. John had left Jan for a younger woman and when they came in Jan was still smarting from John’s actions and extremely angry and emotionally raw. John made approximately $200,000 per year. Jan did not work outside of the home. Jan took up most of the airtime in the first mediation expressing her anger and sorrow about the marriage ending. John managed to mention that he had a proposal that he thought was very generous and that would “take care” of Jan’s needs.
Several weeks later we met for our second session. Once again, Jan spent quite a bit of time discussing her feelings and focusing on her fragile emotional state. When I looked over at John I could see that he was starting to get agitated. I was afraid that I was losing him. It was then that I made my fatal mistake. At a break in the action (that is, when Jan took a breath from describing her woes), I suggested that John had been waiting to tell us his proposal and would it be all right if he did that. Jan agreed reluctantly. John described his proposal. From an objective standpoint, it actually appeared to be an extremely generous proposal (maybe representing some guilt that he was still feeling). Nevertheless, Jan could not see beyond what I had just done. After two minutes of discussing the financial proposal, Jan stood up and angrily stated “ I knew I should not have hired a male mediator” and stormed out of the room.
I reflected on this series of events. Of course, there is much more impetus to reflect on a mediation when a client has walked out of the door . Am I a failure? What did I do wrong? Is it me or them?
In this particular case, I could not help but thinking a lot about what had gone wrong. I spoke to other mediators about what happened, I thought about the mediation and played it over and over in my head. I thought about what I had been taught. Had I violated any of the basic principles I had been taught? What could I have done differently? Would it have made a difference? Over time, I developed a theory of what I thought I had done wrong and what may have worked better.
There is no right or wrong in these situations. Here is what my reflection process produced. I had essentially dismissed the importance of Jan’s need to express her emotions. In my concern about “losing” John, I lost sight of Jan’s need. John needed air time for sure. It became really clear to me what I should have done. It would have been more effective for me to verbalize my internal dilemma and place the problem on their shoulders where it rightly belonged. In other words, I could have said, “I have a real dilemma here. Jan, it is obvious that it is important for you to talk about how this is effecting you emotionally etc…. John, it is clear that you have thought about the financial piece and that you want to discuss a proposal which you have come up with. So, how would the two of you like to proceed?” By doing that, I would have not only avoided putting myself in a position where I had to decide the direction, but I would have empowered the two of them as a unit to make the decision and at least in one way, control the process.
I was fortunate several years later to run a workshop at a conference where I was able to test out my hypothesis. I role-played the facts of this case. We first acted out the role-play scripted in the way I had conducted it originally. We then role-played the same scenario and tried using the alternative I discussed above. It worked! At least in the role-play it did. Soon thereafter, I had a similar situation occur in a real mediation. This time I was ready and I got to test out this approach in real time and again, the strategy worked.
The above is just one example of the benefits of evaluating and reflecting on mediations. I was able to develop a very effective tool in my practice as a result of reflecting on the above mediation. Every mediation is different with different personalities and different fact patterns. However, we can apply what we learn from previous mediations. The key is simply to recognize when to use these tools. I will be the first to admit that I do not do this after each mediation, particularly when mediations go well. But there are lessons even in mediations that go well. Why did it go well? What made it go well? Was it just that the parties were easy going and agreeable? Was it my presence? Was it the time of day? We should build in thinking about the mediation into each mediation. Here are some things we can do to assist ourselves in this process:
1. Take five minutes before each mediation to think about what happened at the last session and what you plan to do during this mediation. You can even start the mediation at 5 or 10 minutes after the hour and explain to the parties that you take the time to gather your thoughts about the mediation and that they will be charged for that time.
2. Take several minutes at the end of each session. Writing out a list of questions for yourself as checklist may help.
3. Send a memo to the clients at the end of each mediation session setting out what was discussed and what was tentatively agreed to. The memo can include what their homework is and what your homework will be. This memo not only helps to lay out what has happened in the mediation but forces you to take some time to think about the mediation. It is best if you prepare the memo shortly after the mediation session.
I do this after each mediation. I charge the clients for this time and I tell them that I will charge them. Clients have universally found these memos to be very useful as have I. They help not only in terms of thinking and self-reflecting about the case, but also clarify what went on at the mediation and what will happen at the next one.
4. Develop a mentoring relationship with someone if you do not already have one. Talk to your mentor about particularly difficult mediations. Do not be afraid to do this. Many experienced mediators are happy to do this. Often this is as much a learning experience for them as for you.
5. Establish a peer supervision group. Discussing your cases with other mediators can be incredibly helpful. Often, just talking about the case, helps you think it through more clearly. Other mediators may also provide you with alternative perspectives, approaches and ideas.
6. Take your own pulse. Are you relaxed or stressed out during the mediation? Are you focused on the couple in the room with you or are you thinking about what you need to buy for dinner tonight? A recent experience illustrated for me how critical it is to be completely focused on the mediation. I had just gotten a new puppy which I was bringing to work each day. When the puppy was small, he slept most of the day so I thought I would bring him into the mediation. The parties were thrilled by having a puppy in the mediation. I also thought maybe the puppy would help create a relaxed atmosphere. I, however, was so distracted by my puppy that I could not concentrate on the couple I was working with. Although the puppy behaved, I was worried about what the puppy was doing. In other words, I was not present. While my clients did not particularly seem to care, I felt like I could not justify charging them for this mediation.
7. Make a date with yourself to reflect about your practice occasionally. Whether it be quarterly or once a year, make a time in your calendar to reflect about how your practice is going. Are you happy with the direction of your practice? Are you happy with your office setup? Is there anything that would make it more welcoming? Are your documents up to date? I find that attending conferences is a wonderful way to get re-energized, get new ideas and reflect on your practice.
8. Tape record your thoughts after each mediation or write or type up your thoughts. We deal with such fascinating people. It is impossible to keep all the information in our head As a lawyer, when preparing for a trial, I will always at a minimum prepare an outline of the case, my theory of the case, what I want to accomplish etc. Mediation is no different. Recording your thoughts helps you sort out the various things happening at the mediation. I visualize it like a supewrhighway. There are numerous roads and paths intersecting at various levels. It is hard to keep track of all of them without some sort of map.
I am often amazed that two people voluntarily agree to come and sit with a total stranger to discuss intimate and incredibly difficult personal issues. I have so much respect for their decision to do so and am ever-cognizant of the fact that for me it is a job, for them, it is their life. As mediators, we are given the privilege of being invited into a couple’s life and relationship. With that privilege comes a responsibility. Our responsibility includes taking time to reflect on each mediation. Our responsibility is also to keep striving to understand what goes on in each individual mediation as well as in our general practice so that we can provide our clients with the highest quality of services.