It’s difficult to retrace what was previously written about - namely, the current mediation culture’s, one size does not fit all. It’s just so important to respond to this thought, again.

Why?  Because the parties need the experience of self-determination. It’s their self satisfaction that is most important. It’s respect for their attempt to eliminate their conflict with one another.

Not too long ago in this mediation culture - one size does not fit all was their defense for not looking into traditional mediation and still is.  All the reasons were the same. There are so many possible roles a mediator plays that one size is too confining after all there are so many styles to think about. And the lawyers and thus the parties tell the mediator how to run the mediation.

These comments were actually their justification to use learned legal training in mediation.  The zealous advocate mentality prevails.

But, their comments put me on the defensive, having to go step by step why self-determination was important in mediation. And still the culture believes they and their separate session approach is important. Please do not let PI (personal injury) cases confuse the reader.  Those are negotiations and settlements. The ask is usually reduced and only one need is met.  The insurance company’s need to keep the claim payout low. They call it settlement.

If what now prevails in mediation continues, then there will be little need for writing and believing that neutrality, trust, lack of biases, cognitive behavior, listening, emotional intelligence, NLP,  or commitments to party self-determination are necessary topics for mediation.

All future articles on mediator performance would be unimportant.  Go in, take the lead.  Tell them what they want, get them to agree and sign the MOU. Universities now teach programs that make the mediator the lead actor in the mediation play.

For a minute let’s look at the process.  

Suppose you wanted to see a new movie, but didn’t have the time.  So, you call someone, friend or family, and ask them to see the movie and come over for discussion and a beer. 

What would you hear?  Certainly no dialogue from an actor, your cousin who went to the movie for you, wouldn’t try to repeat what the character said.  You’d get words but no expression of emotion. Would an explanation be given as to what happened that may have caused the problem the characters  are trying to work out?  If it was an action movie would you hear from your cousin, the plan to do whatever to recover someone or something?  See where this is going?  Listening closely is important, would you have questions about something that happened in the movie or would you base your decision to like or dislike the movie based on your cousin’s report.  Your cousin could not be neutral, but would have an opinion about what was watched. Mediators should listen not to themselves with one party, but listen to both parties, together. That’s neutrality.

In the current mediation process how is neutrality broken?

Think about it.  In separate session the mediator has a discussion with the lawyer and their client (a party in the mediation).   Right then the mediator is speaking/listening as a representative of the other party ( your cousin about the movie). In that conversation the mediator has to converse with a party.  The mediator will maintain they are neutral and will bring nonjudgmental comments to the other party. Some options are discussed with the mediator giving the pros and cons in their discussion, then the mediator returns to the waiting party. It’s difficult to tell another’s story with their emotion included, you can’t and you won’t.  

The mediator begins to tell the wishes and wants of the other party.  Again  the mediator in speaking for someone else. Speaking for the other party takes away any neutrality.  Nobody sees it as they defend what they do as right and proper. The mediator is now an active negotiator, advocate  and a message carrier. Can’t get away from it.

This is not supposed to happen.  Parties are the primary actors of mediation. The original characteristics of traditional mediation have slipped away.  Like  the characteristic of sitting at the same table.

The defense of mediation is difficult as separate sessions continues to gain ground.  It’s tough to see this happening. But the dignity due the parties is all but gone.  Evaluation rules at this time. The mediator’s previous legal training dominates the mediator’s performance.  

Nobody wants opening statements anymore and if opening statements happen, the lawyer has a say.  Let’s get to it, they say, explaining the facts of their case.

Yet, opening statements, by parties and mediator, set the stage for expectations. Just knowing this can add confidence to each party.  And that confidence helps them participate in achieving their needs. In the opening the mediator points out how the process works, and the roles of mediator, party, and counselor.  After the intro, mediator leads none of the parties’ conversations. The mediator follows the parties and their discussion.  As a neutral the mediator will listen to the discussion.  Decide when to ask a question based on the party’s continuing discussion.  Observe the parties together interacting and decide what is necessary to keep the parties on track toward agreement.  The mediator observes where the emotions lay and their strength leading to a smooth conversation or disruptive one. The mediator is ready with help and support for either party.

Mediators take charge by following the conversation, offering resetting of the thought ( reframing  from negative to positive), asking a question and not giving an answer to a party’s request for mediator input.  Sounds unusual doesn’t it? 

Mediators are not the members of the band. They are in a way directors of the band. Lao Tse wrote centuries ago about what a good Emperor needed to do.  Set the rules and don’t get involved in the day to day efforts of those under his rule. Harmony will prevail. Mediation can be like that.  Set the rules and allow the self-determination of the parties to prevail. Shuttling gets in the way of potential harmony.

Accepting that a mediator follows the discussion is very difficult for some. Having ideas about the conflict, the reason for it, and the perfect solution just pushes the mediator to take control. But it’s not the courtroom. Personal convictions  and previous legal trining have to be put aside.  It’s for the parties to decide what suits them and they do that with each other.

During our years of training many retired judges took our course.  There was always a controversy over what the mediator should say and do.  The judges knew the answers.  As one said touchy feely was not for him. Only one judge in all that time got that mediation was about the parties and their opportunity to resolve the conflict. He was there to support them not lead them.    

Traditional mediation is an entirely different process than what is in the current culture. The mediator has a more humble role to play. And that’s what open-ended questions are all about.  The parties are getting lost in their discussions, the alert mediator asks an openQ or says, “Tell us more” as a Segway into moving the discussion forward.

This entire process boils down to who needs what and how to get it.  Mediators help and guide the parties on their trip to agreement in their joint session.

Also, there may well be an economic reason to use traditional mediation ( another aside).  Shuttling costs the process money. At $5 a minute($300/hr) shuttling takes time.  Depending on the distance between rooms and the mindful arranging of discussion sequence with each party the mediator uses up time.  This does not keep the cost low.  Just the opposite.   I remember a mediator saying he made a lot of money in divorce mediation….the rooms must have been many floors apart…and of course there is the suggestion, on some websites, to bring personal entertainment, books or crossword puzzles, or games on your iPhone, emails to read and send, while you wait.  How peachy. 

Distractions in concentration prevent focus by the parties. But waiting can cause idle minds. And can you tell me if the mediator uses the exact same words of the party when returning to the other waiting party? Not often and like the movie example, does not convey the emotional spirit that would be observed in joint session. It’s the interpretation of what the party hears from across the table that leads to agreement. It works both ways.

Really, it’s the legal training that is prevailing.  Get through mediation certification training and it’s off to the races. Most believe using real training about joint session mediation in actual mediation is unnecessary and meaningless.  Certification is held and I know the law.  Old habits and educational knowledge are hard to break. Plus there are many articles enforcing that joint session is gone and mediators get results.

The mediator is not tasked with getting results in that sense.  The mediator  is tasked with monitoring the parties’ conversation and if anything, will clarify the options presented by the parties.  The parties still decide where they want to go to meet their need and the mediator assists in helping them understand each other.  The mediator never makes a decision for them.  Unlike what happens in the current culture.  When asked what do you think?  The mediators should bite their tongue.  They are not there to provide answers.

The parties can and will struggle to achieve a goal.  But it is their struggle and goal.  The mediator cannot contribute an idea.  But, can ask suggestive questions that will get them thinking of better ways to an agreement.

 If we remember that the parties control the progress and the mediator guides them to do their best in attaining that progress then all this defensive rhetoric on their side turns into expensive approaches in supporting the parties in attaining their goal.

 But not in a less expensive joint session….the one size that does fit all….