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  • October 26, 2021

    Your Mediator Presence Influences Mediation Success

    As mediators, we need to think about our presence. How do our attitudes and beliefs affect the mediation process? Paul Stenzel discusses how maintaining a positive attitude while acknowledging your biases strengthens your mediation skills.

    Paul Stenzel

    As important as reframing, affirming, searching for underlying interests, identifying areas of agreement, and other specific approaches to conflict intervention may be, our most powerful tools are always the attitudes and beliefs that we bring.
    – Bernard Mayer,
    The Conflict Paradox: Seven Dilemmas at the Core of Disputes, Jossey-Bass 2015, p. 85.

    Early in my career as a mediator, I focused heavily on process – and rightfully so. After working as a lawyer for years, mediating can feel like being on ice skates for the first time. I wasn’t sure what to grab onto. The old security blankets, like the law, the facts, and what a court might do aren’t as useful – or worse, can be limiting or counterproductive for a mediator.

    Process ultimately provided the structure I needed as my foundation for mediation.

    Paul Stenzel Paul Stenzel, U.W. 1995, is of counsel with Hansen & Hildebrand, S.C. in Milwaukee, where he practices in family law.

    Nevertheless, Bernard Mayer’s statement above struck me like a thunderbolt when I first read it. Probably because it affirmed something that I had not articulated: that there is an intangible interpersonal alchemy that often occurs in mediation, and mediators profoundly and often unintentionally influence the path of their attitudes and beliefs.

    The most relevant example is keeping a positive attitude about settlement. I often work with self-represented parties. They often ask, “Can this work for us?” My answer is almost always, “Yes.” And then I add some variation of “I’ve seen parties who were farther apart with tougher issues reach agreements.” This provides reassurance and potentially some contagious optimism for parties who know little about the legal process.

    This Preparation Is Vital

    Participants in mediation discern a mediator’s attitude and beliefs from many sources beyond the words the mediator says. That’s why preparation is so important for me in both self-represented and lawyer-assisted mediation.

    I think about a case and prepare before the actual mediation commences. I review requested submissions and have pre-mediation meetings with each party (or party and lawyer) so I learn their concerns, interests, and worries.

    From this, I try to imagine different scenarios – while ​being careful not to attach to a certain outcome. If I want to convey a belief in success, I need to see the potential of success, and convey in my words and demeanor that I believe we are moving toward resolution.

    Outcome Depends on Detachment

    While it is important to maintain a positive attitude, it is also important to manage negative thoughts or personal biases that might prevent it. There are many examples of this. The most challenging for me is when I like or dislike one of the parties or think their demands are unreasonable. Another is when I have a personal preference toward an outcome.

    Counteracting this lies in maintaining detachment (part of neutrality) from outcome. This is not “my” mediation. It’s the parties’ conflict and it’s going to be their solution.

    In the very first mediation training I took, the instructor talked about dealing with a difficult participant. When mediators say to themselves, “You’re ruining my mediation!” – that's a sure sign that detachment has been lost.

    While easier said than done, the mediator’s job is to treat a difficult position or personality as a challenge. I usually double down on listening, asking questions, and remaining as open as possible to this person, despite my negative feelings. Opening up and listening with respect gives the parties a voice and promotes mediator understanding, which promotes solutions.

    I cannot avoid my own thoughts, opinions, and biases. The challenge is being mindful and skillful in using my presence to encourage a positive problem-solving space for the parties, rather than letting negativity or my personal views influence the process or outcome.

    I always try to convey positivity and neutrality, but there are issues, parties, and professionals who can make that challenging. They require me to be consistently conscious of my words, expressions, and attitude.

    Manage Your Ego​

    A final area of attitude and belief is managing my own ego. Mediation requires a careful blend of confidence and humility. Confidence helps mediators perform their role. Projecting confidence, calm, and competence can rub off positively on participants.

    At the same time, mediators should have some humility. I don’t know all of the variables at play between parties. I may misstep or become too intent on pushing an agreement. Even the best mediators make wrong turns. In those moments, humility and self-reflection allow doors to stay open.

    I invite you to think more about your attitudes and beliefs as a mediator. Where are they helping you and where are they holding you back?

    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 webpages to learn more about the benefits of section membership.

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    Dispute Resolution Section Blog is published by the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Lisa Derr and review Author Submission Guidelines. Learn more about the Dispute Resolution Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

    © 2024 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

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