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Chicago International Dispute Resolution Association
REFRESHER GUIDE MEDIATORS AND MEDIATION
by Erwin I. Katz
Informational Items
Use of Doubts
A great question for the mediator to pose to the parties is: "Is it possible...?" If the parties acknowledge that something is possible, even if they say it is unlikely, they already are less rigid in their position and may then be able to consider other options. A corollary to this technique is to challenge assumptions that the parties make. Often we will assume the worst of people with whom we are in conflict. A mediator can be very helpful to the parties, by asking them to consider whether those assumptions may not be accurate.
Integrative Solutions
If you help the parties to identify their interests (not just their positions) and think creatively, they may be able to identify issues in which they both can achieve the "win-win" solution that they want. Think of the orange example.
Use the facts
Often the parties will share information with each other that was not previously known to the other. Encourage the parties to consider this new information as a possible rationale for considering a different "position."
Priorities and Trade-Offs
Not everything which the parties discuss will be of equal importance to them. Helping the parties identify which items are most important will help them see that other items are less important. This may yield greater flexibility and ideas regarding items to "trade-off." We often think that we have disputes when we disagree about what is most important. Interestingly, if one puts high value on an issue (e.g., full payment) and the other puts a high value on a different issue (e.g., payment over time), these parties will likely be able to reach an agreement which results in full payment over time and addresses both of their "high priority" issues.
Role Reversal
Help parties to see the situation from the other party's perspective. This technique sometimes is most useful when meeting separately with the parties and they are able to react with greater honesty.
Point Out Possible Inconsistencies
A mediator should never embarrass or berate a party, but sometimes a mediator can note gently that there may be inconsistencies within what the party has stated. One way to do so is for the mediator to take the confusion on him/herself. For example, "I think I'm confused about what happened. I thought you said that you were not at the building that night and now you say you saw her break the window. Can you help me to understand what I am missing?" This is usually best accomplished in caucus, out of the presence of the other party, to avoid embarrassment and defensiveness.
Constraints on Others
Everyone has constraints on them - be they resource, psychological or political. Proposed solutions must fail within these constraints or they will not be accepted by the other party. Pointing out the constraints on others may be useful in helping the parties understand the dynamics at work in arriving at an agreement.
Be the Agent of Reality
The mediator should never force the parties to settle their issues in mediation. The mediator may, however, help the parties to think through what are the consequences of not resolving the dispute in mediation. The parties may want to consider monetary costs, time lost, relationship issues, and the uncertainty of a court outcome when deciding how to resolve their issues.
Relationship Issues
Appeal to Past Practices
Sometimes the parties will have had a prior good relationship. In such cases, it may be useful for the mediator to explore with the parties how they have resolved similar issues in the past. If the parties have never gotten along or have no prior relationship, this will probably not be a useful technique to utilize.
Appeal to Commonly Held Standards and Principles
Sometimes parties will both express a common theme, for example, to be treated respectfully. While acknowledgment of this notion will not "solve" their issues, it is often a helpful way for the mediator to demonstrate to the parties that they can agree on some matters, and thus, can be a good place for the mediator to begin. A corollary to this technique is to utilize "peer pressure" (what would the general public do in a situation) as a way of helping parties to identify commonly held standards. For example, it is generally accepted that if we attempt to pick up our dry cleaning and it is not ready, we do not assault the clerk.
The mediator plays a vital role during mediation in helping parties to reevaluate positions they have taken. Providing a structure for the mediation is a wonderful beginning, but will often not be enough. The parties need the mediator to do more than be a "potted plant" who merely sits in the room. The list above contains some useful techniques for you to try. Some techniques will be very comfortable for you to use, others will be less so. While learning the skills and art of being a mediator, try a variety of approaches.
We discussed earlier in the manual the mediator's identification of the agenda and the issues which the parties need to discuss. Use of these techniques may be helpful in guiding the mediator through those discussions. Once you choose an issue to start with (e.g., one you think is easy) try several different approaches before moving on to a different issue. Three different attempts is generally good -- more than that and the parties may feel inappropriately pressured. If after several different approaches are tried, the parties are still unwilling to reconsider, you may have chosen a difficult place to start. Move on to another issue and try again.
Sometimes the mediator will want to meet with the parties separately. This can be another effective way of generating movement. Because there are so many more issues to consider in doing so, we will discuss this technique next.
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Peter V. Baugher,
President
One South Wacker Drive, Suite 2800, Chicago, IL 60606 USA
312-409-1373 (Telephone), 312-701-9335 (Facsimile),