Manipulation? Mediation?

Do Mediators Use Manipulation?

In the mediation community there has been a long standing debate regarding the manipulative nature of mediation. In the past week while conducting a Basic Mediation Training I found myself thinking a few times…. “Wow, am I telling these people to be manipulative?”

How does the possibility of manipulation enter into the mediation process? I believe there is a possibility of it in many areas……
Questions that are asked or not asked. As a mediator we make decisions throughout the mediation process regarding the questions we may ask, how we ask them, who we ask them too and something I think we don’t think of often enough…. The questions we decide not to ask.

The Tone we use in the mediation session. So much of communication is non-verbal and some of that is the tone of voice we use while interacting with the parties. Our tone of voice can set the “tone” of the mediation session. Different tones will set a different environment and we as the mediator are in control of that.

The use of Silence. Like the questions we ask or do not ask, the way we use silence, when we use silence and with whom we use silence can have an effect on the mediation session. The choice of the mediator to not use silence at a certain point in the mediation can also have an effect.

The use of Touch. This is a “touchy” subject. At times when I mediate I may reach across and touch a participant on the arm. This can be a gesture of support, a way to intervene and stop negative behavior, or can be used in a humorous moment.

Don’t get me wrong…. I don’t think that it is a bad thing if at times we employ the use of strategies that could be seen by others as manipulation. As with everything in mediation and in life, I think the key to this issue is being aware of what you are doing and why you are doing it. There are some ways in which the techniques listed above can support and enhance the mediation process and the outcome for the parties.

For example, at times the use of questions can be used to Challenge the Thinking of the participants and/or encourage them to Think in a New Way. This is the goal of mediation in my mind. If we are not assisting the parties to explore new ideas or solutions or if we are not challenging their thinking on an issue or conflict, what are we doing? We have to have a strategy in order to help the parties move down the road to possible resolution.

In reality we do control some of the outcome in certain mediation sessions. We do it differently than other professions…... It is different because we do not overtly give advice or an opinion. Does this difference ensure self determination? If we are asking or not asking leading questions, how does this impact the outcome of a given session? How do mediators reconcile this as being better than active advice?

I think we reconcile it by remembering:
Open ended questions can give parties more latitude than direct advice.
Suggestive questions are less pressure than direct advice.
“What if” questions help parties to explore the possibilities.
And finally, no one ever has to agree to any terms of settlement…….

Leading the Blind

I had a dream about my dog Maddie last night. Maddie died in March of 2006 and she taught me many things about mediation and working with people. Maddie was a mini-schnauzer and was raised with her litter mate sister Molly until Molly died on 9/11/2001.

Shortly after losing her sister, Maddie became ill and early in 2002 was diagnosed with insulin dependent diabetes. She then developed cataracts and went blind (see that sweet blind stare in her eyes). In the end her going blind was harder on me than it was on her... she did not miss a beat. So what does this have to do with mediation....?

As Maddie was going blind I found a book about Living with a Blind Dog to help "me" cope. When you have a blind animal you often have the urge to help them..... and as in mediation, sometimes helping them is actually hindering them.


One of the best things I learned from the book was that you should NEVER pick up a blind dog and transport it to a new place and put it down.... you may see this as helping, like carrying your dog from the front yard into the house.... or from one room to another in the house. In reality it confuses the dog. Blind dogs have the ability to cognitively map their surroundings, so Maddie always knew where she was and what obstacles were ahead of her. By picking her up and moving her somewhere new and just putting her down.... it would confuse her. She would not know where she was or how she got there..... it would take her a minute to adjust and figure out what just happened. Instead of picking her up, it was best for her if I would stoop down and lead her to where we were headed, that way she learned for herself how to move through the world and when she ended up somewhere, she knew how she got there.


This is the same in mediation and one of the reasons I do not believe in giving suggestions or my opinion to the parties. The parties in a mediation need to know how they reach the resolution, if they come to one... and they need to know the obstacles if they are unable to reach resolution. As mediators we may feel the urge to be helpful and pick the parties up and drop them off at a resolution that we think makes sense. The problem.... when the resolution starts falling apart the parties are not sure how or why they came to it, so they are unable to problem solve keeping it together and they don't "own" it. So, next time you are tempted to pick up the parties and take them to the resolution room, remember my baby "Maddie".... and stoop down and encourage them to the path of resolution and let them find the way themselves.

The Language of Energy

The Language of ENERGY

The white pooch is my boy "Frito"

Excerpts from Cesar’s Way by Cesar Millan

Thoughts for Mediators:

As a mediator, we have to take into account the language of Energy, our own energy and that of the participants in the mediation. There is no denying that in every mediation session, there is energy coming from every party. How you contain and move that energy as a mediator will have a great effect of the mediation session.
Things you should know about the "Language of Energy"
*There is a language that all animals speak, without even knowing it, including the human animal.
* All animals are born knowing this language instinctually. Even human beings are born fluent in this universal tongue, but we tend to forget it because we are trained from childhood to believe that words are the only way to communicate.
* The irony is, even though we don’t think we know the language anymore, we are actually speaking it all the time. Unknowingly, we are broadcasting in this tongue 24-7.
* Others can still understand us (humans and animals), they read us loud and clear, even when we’re unaware that we’re communicating.

When things become emotional in a mediation session, the energy is flowing. No one can hide the energy they are experienceing when they become emotional. As a mediator, you have to be aware of this energy, even when the parties are trying to hide it..... it is still in the room.
Energy and Emotion:
* Energy is a language of emotion.
* All the animals around you, including other humans, are reading your energy every moment of the day.
* You can say anything that pops into your mind, but your energy cannot and does not lie.

The goal as a mediator is to master the skill of having "Calm-Assertive Energy." This energy will give the participants the sense of security they need to speak freely and know thay you are going to keep the space safe. It is also an energy that is not overwhelming and will not shut participants down.
The Calm-Assertive Personality:

*This is the Energy a medaitor wants to portray.
*A calm-assertive leader is relaxed but always confident that he or she is in control.
*A calm-assertive personality is relaxed, even-tempered, but undeniably powerful, and always in charge.

Cesar shares some observations he has made over the years in regard to who animals will follow as a leader and who humans will follow.... My conclusion... our pets should be allowed to vote :~)
Power of the Pack:
* Animals won’t follow soft or weak energy.
* Animals won’t follow compassionate energy or a lovable leader.
* Animals will not follow overly excited energy.
* Animals will not follow an unstable leader, humans will.
* Animals will follow only a stable leader.

To learn more about Energy and Calm-Assertive Energy check out Cesars books.

http://astore.amazon.com/rcblog-20

Spotting a Lack of Safety

How does a mediator create safety? The advice given to those in a "Cruical Conversation" by the authors of the book "Crucial Conversations" (check out the book at http://astore.amazon.com/rcblog-20?node=2&page=2) is to step out of the content of the conversation and take care of the conditions of the conversation, then move back to the content. Don’t stay stuck in what’s being said when things are not going well, step out of the conversation, fix what is wrong with the conditions of the conversation and then step back in. The belief is that conversations go downhill when one or both parties in the conversation are not feeling safe.


So how does a mediator create safety in a mediation session? First, you have to know how people may act when they are not feeling safe in a mediation session. That is one of the problems... People who are not feeling safe act out in negative ways like yelling, finger pointing, arguing, becoming defensive, or totally shutting down and going silent.


Sometimes a mediator may take these kinds of behaviors to mean that the party is not cooperative or not trying to resolve the issues in the mediation. But, before you make these assumptions, think to yourself.... is this about safety? Should the mediator intervene and enforce ground rules, challenge the behavior of the party? Or should the mediator think about ways to create safety, make sure the party is feeling heard, take the fear out of the room?


Next time you are in a situation when a party in the mediation appears to be uncooperative... step out of the content and before you intervene ask yourself... Is this about safety? or something else.....????

Utah Supreme Court Opinion on Mediation

February 1, 2008
An interesting case out of the Utah Supreme Court today....

The case was a civil case which involved a man being injured and he filed suit against the company for negligence. The case went to mediation and in the mediation a settlement was discussed, the mediator prepared a Memo of Understanding (MOU).. but the man who was injured would not sign it because there was a term in the MOU he did not agree with. The opposing side did not believe an agreement had been reached and the injured man took them to court to try to enforce the oral agreement. The trail court judge ordered the parties in the mediation to disclose what had happened in the mediation and if an agreement had been made. The attorney who was representing the company refused to disclose this information. The trail court found that she had to disclose the information and she appealed this decision to the Supreme Court to decide if she had to disclose the content of the mediation.

The Utah Supreme Court: First, upheld the confidential nature of mediation and ruled that the attorney did not have to and could not be compelled to disclose information from the mediation session... which is great news for the mediation world.
They second ruled that an agreement made in mediation is not enforceable unless and until it is put in writing and all involve parties sign it. We have been struggling with this issue in Utah for years.... the binding nature of a mediated agreement and if it matters if the parties sign it or not... This opinion has now answered that question.

It was a good day for the mediation community in Utah in that the Supreme Court supported the confidential nature of the process and outlined when an agreement reached in mediation is binding.

In short they found "we expressly recognize the importance of maintaining confidentiality in the mediation process and hold that Utah law requires agreements reached in mediation to be reduced to a writing and signed by all the parties to the agreement in order for the agreement to be enforceable by a court."
The decision was written by the Chief Justice Christine Durham.

To read the complete opinion go to
http://www.utcourts.gov/opinions/supopin/Reese2020108.pdf