On the occasion of the New Year, I reflected back on my nascent mediation practice. With about 100 child custody and civil mediations under my belt, I am still near enough the beginning of my mediation career to relate to new mediators, but far enough along to have made a few observations.
How you do is at least as important as what you do. So you’re a new mediator in with the parties for the first time. You’re trying hard to stay on script. You’ve been taught that mediation is a process and, if nothing else, you want to follow the right steps. This is good. Mediation is a process and the steps are important. However, as you begin to relax and become more familiar with the steps, take some time to think about all of the other factors at play.
As communication experts will tell you, there is a whole world of communication occurring at many different levels besides the surface discussion. Parties in disputes are often in a heightened state and as such are more likely to be attuned to non-verbal cues. Pay attention to the tone of your voice, your demeanor, your facial expressions, your posture, your inflection and your choice of words. As I have mediated more and more, I find that I am having more success not by changing what I say, but how I say it.
As a newer mediator, you don’t know for sure what will work; so be open to using everything. One of the common metaphors used in mediation is the mediator’s tool box. (Sounds better than a bag of tricks). When I started out, I was very averse to caucusing. I believed that the parties needed to face each other and the only way they could reach an agreement was by talking to each other. As I mediated more cases, I had a stronger sense of things to tell the parties about the case and used caucus in limited circumstances. I was pleasantly surprised by the results; sometimes the parties just need a break and an opportunity to vent, if nothing else.
Another example is phone mediation. I never would have been in favor of it, but in one of my cases, geography made in-person mediation impractical. Before the mediation, I thought, “This can’t work; everyone’s going to miss all the non-verbal stuff.” It was a family case and it turned out that the phone provided a useful buffer between the parties’ emotions. An hour and a half later, we had an agreement, and you could have knocked me over with a feather.
Less is often more. The first set of trainers from whom I learned facilitative mediation, had a favorite saying: “Mediators do ‘nothing’ well.” One of the hardest and subtlest skills for a mediator to learn is when to talk and when to be quiet. As a newer mediator, there might be a tendency to over mediate a case due to eagerness. The other way this issue manifests itself is when a mediator clings to continuing the mediation at all costs. I’ve found that telling the parties we’re wrapping up and that some disputes have to go to court can, in certain cases, lead to a breakthrough.
Let go. When the parties don’t follow the path I think I’ve shown them, I used to think, “They’re ruining my mediation! Why can’t they see where they should be?!” Now, I focus on the journey without attachment to the outcome. Am I seeing hidden offers? Am I giving the parties enough space? Am I talking too much? Some of the mediations I feel the best about are not always those that end in agreement.
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