Building Confidence as a Mediator

One of the things I have noticed as I have become more comfortable mediating is when and how comfortable I am in pushing the parties and not giving up to soon. When I first started mediating I was a little bit apprehensive to push or ask certain questions when the parties were convinced that this was not going to work and they were not going to come to a settlement. As I have become more comfortable as a mediator, I have also become more comfortable in pushing the parties a little bit more and asking questions I would not have asked when I first began as a mediator. What I am finding is these questions are what will move people to settle. They push the parties to think of different ideas.



I remember a mediation I conducted that has been in civil litigation for over 4 years. The parties had made offers back and forth and back and forth. In the mediation session I encouraged them to think outside the box. I encouraged them to think of a settlement possibility that they could not get in the court that would be useful for them. In the end a settlement was reached and the parties agreed that one party would a give credit of services and product that his company made to the other party in lieu of a cash settlement. The other party had two years to use this credit. Both of the parties jumped right on the idea, it was a perfect settlement and something they could of never come to in a court hearing. The court could only look at cash damages. It was one of those win/win situations.



As you grow as a mediator you have to be a little bit assertive and be willing to ask the questions that may seem like you are keeping things going to long. There is the balance of course, that you cannot keep parties hostage until they settle and you have to know the difference. But quitting too soon is something that new mediators really need to pay attention to and make sure you work just a little bit to move the parties to settlement.

Control

Control of the Process
In basic mediation training we are all taught that we are in “control” of the process of the mediation… not the outcome. So, what does being in control of the process mean? Does it mean that you exert yourself at all costs? Do you set ground rules? Do you ever give over the “control” to maintain control?

I remember a case I mediated in which I had a very energetic party. It was a young Guardian ad Litem (GAL) in the case and he was fairly new in this role. The case was complex and the level of conflict was high so this GAL has a lot of energy wrapped up in the case.
The case involved a young child who had been abused physically and the parties were trying to determine the custody and visitation arrangements between the mother and the father. The abuse had been perpetrated by mother’s ex-boyfriend who was now being charged with criminal child abuse. So, neither of the parents directly caused the abuse, but the state child protection workers wanted both of the parents to take some responsibility in the form of failure to care charges.

The GAL was very animated and involved in the discussions regarding the care of the child. In order for me to suppress his energy and involvement in the mediation would have taken a lot of interventions and in doing so, I would have had to shut down many things that were happening in the mediation. It also happens that when he came into the room, I asked him to sit at the end of the table; instead, he pulled in right in-between the parents and their attorneys. This put him in direct line with those having the conversations.

So, he was put in the middle due to the seating arrangement as well as in regard to his role as the GAL. So, what did I do? I went with the flow. The GAL had lots of energy around the issue, he was working and engaging appropriately with both parents, so, for a portion of the mediation I basically stayed out of his way and he worked out the issues of custody and visitation.

He worked it out between the parents like a mediator would. The GAL was doing a fine job of negotiating custody and visitation, moving back and forth between the parents. The mother and her attorney were in the mediation room and the father and his attorney were in a caucus room. The GAL was the one moving back and forth negotiating the plans, instead of the mediator. I would not always do this, in fact, I would rarely do it. The reason I allowed it in this case is that I believe that we as mediators need to be aware of what is working and not working in the room. And in this case, it was working.

As mediators, we have to be flexible, we have to work with what is going on in the room and not force people into the format or the structure that we believe is best for them. Instead, we need to work with them and help them to find the format/structure that will work best for them in addressing the issues they have come to work on in mediation.

The other issue in this case was that of seating arrangements. When ever you have someone in- between the parties in conflict, they are going to end up being very involved in that conversation. My preference would have been for the GAL to be opposite me at the other end of the table and the parents to be side by side with their attorneys and the State Child Protection workers and their attorney across the table. Then, I, as the mediator, am in the middle of the conversations and in this case the parents could have had conversations without someone in the middle. Seating is very important and you have to think about it. In this case I could have been more assertive when the GAL first sat down and asked him to move, but I did not. Once I made that decision I had to work with it and not disrupt the flow of what was happening in the process.

So, as with all other things in mediation…. Control is a relative and flexible concept. I guess that is why we all love the work so much.