Unlike the role of the attorney as advocate, the role of a mediator is to stay neutral, gain the trust of the parties, and keep them engaged in the process until an agreement is reached.
Experienced attorneys make very effective mediators, especially when mediating a dispute in their primary practice area – but our effectiveness is reduced when we lose our neutrality and take sides. It can happen easily when one side maintains what we see as an unreasonable position.
In my practice area of family law, this is a common occurrence. I, too, often have to resist the inclination to work with an unreasonable party to change his or her position. If I push too soon or too hard, I will lose them.
I often have to remind myself that the goal is not to guide the parties to what I believe is the fairest outcome. Rather, my job is to help the parties make their own decisions to resolve the issues.
A mediation can also fail if emotions take over and creative thinking stops. Using the following skills and techniques can help the mediator stay neutral and keep the parties calm and focused on finding resolutions to their issues, so that a complete agreement is reached.
Mediation is typically an emotionally charged process. Tears and raised voices are often part of a family law mediation. Discussing unresolved issues – especially
when it involves their children or their hard-earned money – is inherently upsetting. Hearing different points of view or proposals that a party does not like or disagrees with can provoke anger and frustration.
Effective mediators must keep their own emotions in check and attempt to manage the emotions of the participants. But this stressful process of talking, listening, and creating solutions is necessary and is how conflicts are resolved. So how do we participate in this process without getting anxious and upset?
For the mediator, a way to stay centered and calm is to remind yourself as you are going through the process of the following:
an agreement at the end is all that matters;
although it often takes time, an agreement can usually be reached; and
arguments and disagreements about the past are OK, because reaching an agreement about the future is what matters. Remember to balance discussions of the past with those of the future.
Staying patient and calm as the one in charge of the process sets the right tone and influences the participants to better manage their own emotions during the process. If a party becomes upset, often reframing an issue, especially reframing toxic language, helps tone down the emotion.
In addition to setting the right tone in the room, an effective way to manage the emotions of the parties is to manage their behaviors.
Setting ground rules for what the mediator expects of the participants helps them moderate their behavior during the process. In turn, the atmosphere remains calm. The mediator should adhere to these same ground rules to avoid taking sides or having the appearance of doing so.
Some of these ground rules are to:
Allow the other party to speak without interruption. Suggest that parties take notes of any ideas that pop up while the other person is talking – then they can raise them when it is their turn to speak.
Speak respectfully to everyone. Making negative, toxic comments or raising your voice often triggers defensiveness and does not promote calm and rational thinking.
Allow participants to take a break. Mediation is more flexible than a court hearing. Taking a short break is often what is needed to help a party calm down or to get advice from a lawyer or advisor before making a final agreement. Taking a break can be a valuable moment not only for the participants, but for mediators to assess whether they are using the skills needed to reach an agreement.
As attorneys, we are trained to analyze issues and advocate for our client’s position. As a mediator, we have to avoid advocacy, stay neutral and allow the parties to find their own solutions.
How is that done? Asking the parties to prepare several different proposals for each issue needing resolution encourages flexible thinking on their part, to develop new ideas and solutions to their issues. It also prevents them from getting stuck in “all or nothing” thinking.
Judy O’Connell, Marquette 1986, is a shareholder with Von Briesen & Roper, S.C. where she concentrates her practice in family law. She does private mediation and serves as a mediator with the Family Mediation Center in Milwaukee.
An effective mediator must be able to draw out new ideas and new ways of looking at an issue to avoid that sort of dead end thinking. In a divorce mediation, asking a couple to come up with several different proposals on an issue steers them away from the same recycled arguments they have engaged in over an issue that always ends in a stalemate.
Getting the parties to look at multiple proposals encourages creativity and prevent them from getting stuck if, and typically when, the first proposal is not immediately accepted. Asking questions about a proposal for greater understanding promotes healthy discussion and helps each side picture how it would work if they both agreed. Asking questions to make sure you’ve understood their proposal makes the parties feel understood and moves them to a place where they can be more constructive and open to problem solving.
Skillful questioning in a calm manner can stop the person who is yelling and bullying. He or she finds that this intransigent behavior isn’t working – it’s not causing a fight back or a surrender, and it begins to look and feel ridiculous. It can change the negotiation dynamic.
Asking open ended questions of the parties is an effective way to force them to look at issues from a variety of angles. Asking them to think of different solutions and how solutions might work for them promotes flexible thinking, and is a listening strategy that draws out the thoughts of the participants, instead of the opinion of the mediator.
Giving your opinion as a mediator may trigger one party to perceive that you are siding with the other, which can mark the beginning of the end of the mediation. While offering a new option to help them think more flexibly can be the breakthrough needed, the mediator must be wary of being perceived as taking sides when offering ideas. Remember to ask for their opinion of a new option you may offer, and resist sharing your own.
Conclusion: It Takes Practice
Practicing these basic skills and adhering to these simple techniques leads to greater success as a mediator.
Constantly assessing whether you are using them both during and after a mediation enhances your effectiveness as a mediator and leads to more parties walking away from the mediation with an agreement in hand.
This article was originally published on the State Bar of Wisconsin’s Dispute Resolution Blog. Visit the State Bar sections or the Dispute Resolution Section web pages to learn more about the benefits of section membership.