What Not to Do

I recently started offering workshops in mediation skills, and as always, when one is teaching, I am learning a lot.  Much of what I have learned over the years about how to mediate has come from reflection about my mediations after the fact.  Once one has mastered the skills of active listening, reflecting, reframing, summarizing, checking in with the parties, brainstorming, allowing for silence, etc., there is often a bigger picture question. There are moments in many mediations in which one is not sure what to do next. Some trainings refer to that as impasse; but impasse is where the parties are before they even come to mediation. When mediators talk about impasse, they are talking about themselves. They are at an impasse about what to do next.

In one of my recent workshops in mediation skills, one of the participants said that she felt a greater sense of confidence after the workshop because she now realized that even very experienced mediators are sometimes at a momentary loss. This comment, along with my own reflection, made me realize that very often what a mediator needs to know is not what to do but what not to do.

The question for many mediators is what to do when the mediator has already summarized the parties’ concerns and each party seems to understand the concerns of the other, but there is no sense of movement. Sometimes, at that moment, I am considering a way to summarize their concerns again in a deeper way, but am still considering whether and how to phrase that more meaningful summary.  Or, I may be considering whether the parties are confused or uncertain in some way, and whether and how to focus on it. I am struggling with the need to have more information put on the table, and balancing that with a respect for the parties’ autonomy and right to convey their innermost thoughts when and how they want to. As I am considering all this, at warp speed, I am also listening and watching the parties, so that I can be present and helpful. No wonder mediators are exhausted after a mediation. A few seconds may pass, but it feels longer. I allow the seconds to pass because the silence gives the parties time to think, and I do not want to speak before I have something useful, appropriate, neutral and unobtrusive to say.

Perhaps the parties will speak next. If so, what they say will undoubtedly be useful. Perhaps I will speak next. Having considered what to say, it will often be helpful. The only danger is in being afraid of the moment; being afraid of not knowing what to say for the moment, of the silence in the room. The danger for new mediators,  for those lacking confidence, or for those who have difficulty with neutrality or the deeper meaning of self-determination, is that they will give up and do something rash. In my mind, often what mediators need to know is what not to do, rather than what to do.

So, what should the mediator avoid doing at those moments? The mediator should avoid making statements that will be perceived as non-neutral by a party or statements which attempt to resolve the dispute for the parties.  In my view, the mediator should avoid asking questions that will be perceived by a party as questioning their needs, desires or interests.  If the mediator steers clear of statements and questions that do not comport with neutrality regarding the issues and the parties and the parties’ right to come up with solutions to their own problems, the mediator can not go wrong.  Having the confidence to wait a few seconds until the parties speak or until the mediator can organize a useful intervention will save the moment and the mediation. Experience as a mediator means gleaning that confidence.

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