The excellent mediator must answer the challenges posed throughout by the participants’ behaviours and the content of the mediation, and it is the extent to which balance is achieved at every moment through the exercise of good judgement that determines effectiveness. The mediator’s focus and approach must change frequently throughout the mediation – sometimes planned and sometimes intuitive.
The following headlines seek to describe and define in summary some of the areas where the mediator must make choices to create the appropriate balance, which can make all the difference to the outcome for the parties. The word ‘balance’ in no way implies that the answer lies in the middle with the scales gently poised in equilibrium; in mediation, the need for a particular focus may be extreme in one situation and at another be absent entirely. The really effective mediator does not fall into one category or another but uses the full panoply of techniques, skills and approaches to meet the changing demands of each case, each situation and each person involved.
Each of us, depending on our experience, expertise, emotional and practical preferences, will feel more or less comfortable at different points on the spectrum for each of the aspects listed – the skill lies in the ability to be flexible, even to the extremes which lie far outside our own zones of comfort, and helping the parties to be flexible, too.
The management concept that a balance is needed between task and relationship is relevant to the mediator, with the added dimension of process being critical, too.
The temptation for some whose professional experience is in the content of the mediation, or conversely where their training is in psychology, for example, must be particularly alert to the need to leave for a while the understanding of the issues – or the understanding of the people – and move as needed along the people / issues spectrum.
Jungian theory of type suggests that each of us has a preference for detail or big picture – awareness of this as a starting point, as with other aspects, helps to move us appropriately between specific and global viewpoints, and t help the parties to do so.
Thinking of a mediation as being in the shape of a kite, starting at a point and opening up, then turning the corners and converging at a final point of agreement, the mediator helps the parties to open up the picture, and then guides again in order to leave the wider discussion and move to ideas for settlement and agreement. The exact shape of the kite will vary mediation to mediation, as more or less time is needed for exploration, explanation and discussion before the parties finalise an outcome they can all live with.
The comfort of the mediator may need to be sacrificed for the comfort, or necessary discomfort, of the parties. The balance between support and challenge has relevance here, too.
In relation to managing the process, working with the views of the parties, and enabling change to take place, the mediator treads a fine line between being accepting and exerting control. The excellent mediator needs to be a figure of authority and at other times the humble servant of the parties.
The mediator must act as a guide through time. Anger or despair can leave parties stuck in the past, yet there is usually some need to talk about what has happened to bring parties to this point; frustration or anxiety can lead parties to rush to seeking agreement before it has been established what else needs to be resolved beyond the obvious, as a basis for detailed negotiation. With so much to think about it can be a challenge for a mediator to take seriously the maxim that ‘what is happening right here and now in the room is the only thing that matters’, and that the focus should be on the present and staying in the moment with a party.
Part of the task of the mediator is to create momentum to help parties see and use the opportunity that mediation affords to reach settlement. However, momentum is different from speed, it does not mean one-paced, and not just fast. This is an aspect more likely than some others to be affected by the emotional state of the mediator, who is also subject to anxiety and pressure; the mediator has an important role in assisting the parties to move through the mediation at a pace consistent with sustaining progress. The pace needs also to be consistent with the needs of all parties – and where one party is ready to move forward much sooner than another, the mediator must help all parties to cope, even with boredom, and to keep in view a horizon of settlement.
This idea is similar to creating or controlling momentum, above, but with an emphasis on the outcome. There are occasions where the job of the mediator is to drive the process forward, to encourage the parties to develop ideas into agreements, and there are other times when such activity would be premature and risk any progress made being stalled or even reversed. A mediation does not succeed on the basis of what the mediator wants but what the parties need. Similarly, acknowledging or confronting a situation or bypassing a difficulty by ignoring or changing the subject, both have their place in an effective process.
The use of these words will have a different resonance for different people. Clarity, precision and getting to the point are characteristics highly valued in some professional cultures and in some parts of the world more than others. There are moments in a mediation where honing an idea, taking time to work in depth on an aspect or finalising wording are vital to progress; and there are other moments where leaving things vague, shading the edges of an idea or generalising to avoid commitment can create freedom, scope and possibility. We sometimes need to abandon our own urges for the definitive to allow the best to emerge from mediation.
The mediator will, of course, talk with the parties about the content of the dispute, in order to clarify what really matters to them and what they need from any settlement, as well as discussing in more detail the risks and opportunities, the options for resolution and the practicalities and technicalities of any agreement. The mediator, as the primary manager of the process, must also discuss process issues with the parties, to keep them informed about what is happening, to consult and discuss the use of time consistent with progress and to check and confront any possible challenges to the safety of the process, in terms of confidentiality, conflict of interest, authority to settle and the preservation of the mediator’s impartiality. A mediator should keep content and process both fully in view and not get sucked into the content or hide-bound by using the process rigidly.
There are at least these three dimensions in every mediation – there are other Models, too, which alert us to the need to move the conversation around, in this model around a triangle of topics – the balance in any mediation will be different from that in another. In every mediation there should be opportunities through questions, silence or other expressions of interest, for the party to open up the legal, the commercial and the personal aspects, in order to find new areas for negotiation that might hold the key to settlement.
The choice here is between helping the party to decide for themselves and telling them what to do; offering flexibility and certainty in appropriate measure. When a mediator is directive s/he wants the party to comply, when coaching s/he wants to enable and empower the party to make their own decisions and or take their own action. There is often a distinction, too, in style and tone of voice, assertive or gentle. Mediator motivation, however, must be the same for each – from a perspective of non-bias, and with the best interests of the parties and the integrity of the process paramount.
The mediator can and should affect the tone of the mediation. The mediator models the desired tone as a starting point for influencing the level of energy, relaxation or calmness at any stage. Tenacious or relaxed mediator, both are valuable. More direct techniques may sometimes be needed to affect significant change; holding up a mirror to the party to describe and challenge the current approach, thus coaching towards a change in attitude or style or offering a break for reflection or refreshment.
This is a process choice for the mediator – to put or keep parties together, to meet privately with one or more members of a team, or to leave parties to meet on their own. There are judgements to be made at every turn about the purpose of meetings and the likely dynamic created by mixing teams and varying the personnel in meetings.
There are occasions when the mediator needs to be nurturing, to provide the necessary comfort and security to allow the parties to participate effectively. On other occasions the primary task will be to help the parties to focus on the practicalities of settlement rather than on their emotions. Get that balance wrong and the mediator will get in the way of resolution, either by slowing down the process with an overemphasis on the past and the emotions associated with what has happened, or will miss the point about the need for restorative processes to be part of any settlement. Linked to this idea is the balance between being passionate, compassionate or dispassionate – all appropriate at times.
The importance of honouring promises and keeping the process safe is paramount for a mediator. However, the effective mediator knows when to encourage parties to give up their information and to use it to create momentum and progress. In this and in other contexts, the mediator needs to be both a safe pair of hands and a risk taker.
Each mediator is likely to have a preference for working with either the facts or the feelings, and every mediator needs the flexibility to work outside their preferred zone in order to meet the needs of the parties and the particulars of the dispute.
Many mediators come from professional backgrounds where challenging apparent inconsistencies and contradictions is a daily activity, and this, used sensitively, contributes to their effectiveness. However, spending too much time searching for lies and deception will divert from progress; whereas looking for patterns in behaviour and conversation can lead to greater understanding about what really matters and what might lead to settlement.
The mediator who can bring humour and a lightness of touch to the job will offer the parties a chance to relax for a while, putting things into perspective. A change of atmosphere can help the parties tolerate each other’s presence and can improve the prospects for successful negotiations. Inappropriate light-heartedness in the face of anger, worry or despair will alienate the parties and create distrust of the mediator.
The mediator is there to talk about the parties and their perspectives; “don’t talk about yourself” is generally good advice, especially for the new mediator. However, the mediator who knows how to pick the right moment to disclose something of themselves, authentically – perhaps feelings, hopes, frustration, experience – can add a new and powerful dimension to the role.
Excellence requires good judgement, a mixture of well-informed analysis and powerful intuition. Intuition, although less easy to define and to teach, is not random or haphazard; it is the culmination of confidence and competence developed through experience. The mediator needs to be relaxed and attending to the ‘here and now’ in order to drawn on and trust their intuition. Judgement is built in similar ways, through learning and experience, although using analytical skills to decide on action. Good judgement also demands courage and a letting go of ego. The excellent mediator exercises good judgement throughout, for the benefit of the parties and the process over any benefit for self.
The simple and familiar choices about whether the mediator is present or absent, or is silent or speaking have an impact on progress, and neither is always wrong or right. In reflecting on your own practice, a number of further demands might occur to you, requiring a different balance, in different circumstances with different parties, at different times. The old distinction between a facilitative or evaluative mediation fails to grasp the subtlety demanded of and used by the excellent mediator.
From Michael Carbone's Resolving It newsletter.In 1997 the California Legislature enacted Evidence Code Sections 1115-1128, which established mediation confidentiality as an evidentiary exclusion in California. The purposes of this legislation...By Michael P. Carbone