“Study your theory and practice your technique, but when you are in the presence of a living soul, respond to the living soul.” Carl Jung
A mediator has to often deal with High Conflict people and their defensiveness, and, in the attempt to defuse the situation, the mediation often gets emotionally drawn into the conflict resolution by taking the responsibility of the outcome to be his goal. The mediator’s role is primarily one of a person who lends his/her EAR- EMPATHIZE, ACKNOWLEDGE AND RESPECT. Respect for ones’ own self, participants in the dispute alone can enable the mediator to empathize and enable parties to acknowledge their contribution to the conflict.
The need to understand emotional scarring and provide a dignified retreat for the scarred contributors to the conflict is the salient facet of mediation. Mediation helps to bring about an emotional well-being and the disputants are able to rise like phoenix from the ashes to renew their relationship in a healthier manner when they learn to understand the possibilities and acknowledge their priorities. To get disputants to that level, the Mediator has to have an insight into their emotional quotient and to respect their stand at every stage of the negotiation to enable the mediator to help them to understand their real need. The mediator has to believe in the process, instill belief in the process and that is possible only when the mediator commands respect by the way the process is handled and by respecting the parties and encouraging them to understand their strengths.
ESTABLISHING RESPECT AT THE OUTSET;
The Mediator as the facilitator in the dispute resolution sets the tone by being respectful and demanding respect by his/her demeanour. The tone, language, manner of approach of the Mediator, creates respect for the process, and the disputants soon learn to control their outbursts and slinging barbs once they realise that respect has to be earned. More often, when the disputants and their counsel realise that mediation is not the forum to establish their case or base offers solely on merits, but an opportunity to explore and collaborate, disputants move from the demand for self-respect to understanding self-esteem and make probable suggestions for settlement which is tinged with reality.
RESPECT OF LAWYERS IN MEDIATION:
The common grouse that lawyers do not support mediation and that in fact, they are the cause for impasse, can be mitigated by bringing the counsel for the disputants into the discussion and by focussing on their contribution to the dispute resolution. Once the lawyers role in the negotiation is pointed out to the disputants and the lawyers are made inclusive, irrespective of their attitude, the disputants gain confidence and are ready to view the larger picture. Even when lawyers are a road block, if the mediators handles them with respect and brings them into the discussion at the appropriate time after emotions of parties have cooled down, the disputants and their counsel become willing to consider opportunities. Often times, a face saving gesture by the mediator or the other side who has understood the reason for the impasse enables the counsel to advise their party to consider options.
In a recent court referred matrimonial mediation, where the spouses have been hurling abuses against each other of having illicit relationships and have the custody of one son each, the counsels were totally un-co-operative and refused to allow the parties to talk and wanted only to punish the other. The wife’s father also said that the husband going to jail alone would satisfy them as his daughter’s life was lost and he had suffered a lot. The mediation was closed because the wife’s lawyer insisted that his party was not willing to negotiate.
After the mediation was terminated, the wife’s father asked for permission to talk and explained his difficulties. When the mediator asked him to ask his daughter, what she wanted in this situation instead of others talking about it, the wife broke down and said that all she wanted was the custody of the children or atleast visitation rights for the child in the custody of her husband. Her father, even then said, that he was prepared to spend everything he has to see that the husband does not have a good life as he has hurt his daughter. The told him that no one can prevent him, but then at the end, when is his daughter going to see her son. Immediately, he asked the mediator, what he could really do for his daughter. The mediator then told him that his efforts to protect his daughter’s life was laudable but in the process of going to the police, the issues had blown out of proportion and as his son-in-law had not been respected, or his words respected, the conflict between them had caused too much hurt to both of them and was affecting their children also. The mediator then said that if the wife were to accept the visitation allowed by the husband and then talk about settlement when emotions had come down and both of them had time to realise what they wanted in this issue, maybe they would respect each other’s need and then move forward. The lawyer then accepted that the wife’s need to see her other son was more important and that he would bide his time and talk to the other counsel about settlement at a later stage. This transformation in their attitude came, only when each of them and their point of view was respected. .
RESPECT FOR PERSPECTIVE;
At times we fail to see the larger picture and hence our presumptions attribute a thought which prevents us from respecting the other point of view. When one judges automatically and puts the blame on the other for the cause of the event, there are two factors which trigger this attitude:
one which is internal based on the individuals character and the other which is external, based on the situation/circumstance.
Instead of presuming that the other will be/act only in a particular mode, or that will have same views as ours, or look for indicators to substantiate our belief, if we give respect to what the other person says/feels and understand why they are reacting in a particular way, and assure them of their capacity to move on, the disputant, feels that his emotion is respected and is able to forgive and forget or understand what he/she has to do in the circumstances. Building the bridge with the disputants making them feel human and not as people in conflict ought to be the attitude of the mediation. .
ESTABLISHING RESPECT BY REALITY TESTING:
The process of mediation is so designed that the mediator is able to command respect and establish respect for the parties. The introduction and joint session at the outset helps to create the semblance of balance. Once parties have vented their feelings and expressed their fears, they are ready to consider other perspectives and it is for the mediator to nudge them forward without disrespecting their advances in the negotiation. At time acknowledging age of a party or age if third parties who influence the negotiation sets the cue to move with respect. The expertise of a party or their ability to bring in a fresh perspective when recognized influences the other party to respect the offer. The negotiations bring into the fore a set of bias and positions and when the mediator is able to handle this with respect, the agreement soon follows or atleast, the mind set of the parties changes. Some factors which the mediator has to be aware of to be able to use as a tool to restore respect are:
SHUTTING THE DOOR:
When one party makes a high end offer which is countermanded by an offer that is at the other end whereby the party feels insulted and disrespected, the mediator would have to establish that the offer was not made to insult but then it is the way, a negotiation could start as both want to maximise their benefit
BUILDING UP TO BRING DOWN-
The mediator can also acknowledge that he/she knows that the issue is worth much more but then, in reality, what could be got in such circumstances by building up self-esteem. The mediator has to focus on having a proposal to discuss and nudge parties to keep on track, instead of feeling insulted, and ask for a figure/offer which the disputant might consider.
PARALLEL TRACK BARGAINING:
The mediator could also hypothetically present a figure/offer or ask for a figure/offer and assure both parties individually that their reply to the offer would be disclosed only if the other side accepted it, thus establishing confidentiality and confidence and saving each of them from feeling insulted. Such an attempt would establish that the discussion was without prejudice and totally voluntary.
when disputants have scant regard for feelings and make offers – like in matrimonial disputes saying, she hardly lived for 20 days and so what can she get- the mediator has to establish respect for the individual and ask them to look at the legal consequences of marriage per se and not the time they lived as spouses. Bringing them back to the issues in the marriage, their responsibility in the cause of the conflict and establishing their capacity to move forward will enable disputants to respect the need of the other.
Bonding by the mediator, by showing that the perception and the reasons for the attitude of the disputant is understandable and pointing out that there is need to look from the balcony and getting another view. Asking the disputants to give a better offer or let go
During the process, when anger and frustration leads to a disputant to be aggressive, an apology by the mediator to the effect, that he/she has been unable to find a proper expression for the hurt that they have, enables parties to get over the emotion- I may have given an impression inadvertently that causes you to react in this manner, but really ——-Once, the parties feel that their point of view is respected, more often they are able to settle when they get an apology from the disputant or given a way out by the mediator in the form of an apology.
Staying oriented at various levels and consistency are therefore very important in mediation. The hierarchical levels, authority of disputants, and role expectations have to be balanced and treated with respect. Respect for the PRIVACY of disputants is the core of mediation and so maintaining confidentiality increases respect for all concerned with the mediation.
Buddha has said that the search for TRUTH can be achieved only when one listens with the heart. Listening with the heart can happen only when there is respect for the humans involved in the conflict and the disputants respect what is happening and what can happen. Disputants then gather their abilities and find a closure to the dispute and exit with honor.
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