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Framework for Mediators to Engage Parties in Mediation

Recently I had the privilege of attending a meeting where the presenter gave a powerful talk about how to engage with people. His story is in itself amazing, especially his journey through drug addiction to a place where he is now able to provide support and guidance for others on difficult journeys. His message resonated with me in terms of how we can work with people in mediation.

Almost all mediations start with the parties being very positional and sometimes we may think that the positions between the parties are so stark that there is no prospect of matters being resolved at mediation.

This man’s message gave a framework which I think would be very useful to deal with these situations. His message is:
1. See through the barrier
2. Move though the barrier
3. Stay calm

His explanation of the framework provides real insight into the mediator skills required to deal with each part of it. I would like to take a particular scenario in respect of a relocation case to discuss the framework and what I took from his message. We often hear that relocation issues are difficult to mediate as parties are usually absolutely for and absolutely against the proposal for relocation.

See through the barrier
This first step requires the mediator to see though the barrier that the case is about relocation and therefore unlikely to be resolved. The mediator opening his or her mind to the possibility and indeed probability that the parents will be able to make a decision is the first step. This part of the framework requires the mediator to be introspective and recognise that one of the greatest barriers to a successful mediation may be the mediator him or herself and the attitudes and beliefs that they bring into the process.

The preliminary meeting with each of the parties provides the perfect opportunity for development of insight to occur. Affirming that the parent who wants to relocate has thought about the relocation, allows the mediator to use empathic, open questioning to fully understand the reasons for the party wanting to relocate. Discussion of the impact on the children of leaving their home, school, familiar daily routines is unlikely to unlock the parent’s thinking about the relocation.

A discussion about how the arrangements for the children are going to work if the parent relocates practically, how the children will respond, maintain their relationships with their friends, community, extended family members, development of what if scenarios, identifying the parent’s underlying interests. Is it a need for emotional support, the need for affirmation about their personal qualities, the need to address pain and hurt will allow some concrete thinking and hopefully at the end of the meeting the mediator leaves the parent with enough to think about before the joint meeting occurs.

Employing the same techniques with both parties allows the mediator to demonstrate equivalence and challenge their own views and experiences to ensure that they are aware of how these views and experiences might influence the mediation.

Move through the barrier
His description of this phase was simply to begin to talk with the person, affirm that they are capable and then trust that the person was able to make choices.

I have had the privilege of writing a lot of reports about mediators undertaking assessment to become accredited to various mediator panels and can say that the best mediators demonstrate confidence in the parties’ ability to make decisions about their own lives.

A mediator who employs a full range of skills including naive enquiry, reality testing, reflection of a person’s viewpoint, using the weight of a person’s argument to push back against their positional approach, option generation which allows time for thinking and creativity demonstrates confidence in the process and encourages decision making. This is a very active process where the mediator may also include some stories to help the creative process, give some ideas even some that may appear ludicrous all in the pursuit of keeping creative solutions flowing.

So often though the power and opportunity of this phase of the mediation is cut short by the mediator grasping too early on a solution that meets their sense of what should happen or indeed in some cases with the mediators giving advice and opinion albeit well intentioned.

I like the way this man described this part of the process of “walking with” someone on their journey and recognising that creating the environment for the conversation to happen is the most important step to moving through the barrier. Mediation which happens in a confidential space where people can open their hearts and have conversations about what something means to them is more likely to create a sustainable solution.

Creation of this sort of environment in mediations where the parties are mediating in the shadow of the law can be particularly challenging. That in itself is a barrier which needs to be moved through.

Stay calm
Staying calm is difficult when there are time pressures on the parties because of financial constraints or operational policies that may limit the time parties have to try and resolve an issue.

A mediator who models confidence in the process and the parties ability to make a decision, whether that occurs within the time frame that the parties have to work with the mediator or at some time after that is an essential skill of a mediator working in Family Dispute Resolution.

Recognition that the parties to a dispute have made many decisions before they come to mediation, including decisions about forming a partnership, having children, separating, moving house, enrolling children in school etc. is very important because it is that capacity to make decisions which needs support. The parties to a family dispute will have to continue making decisions long after the parties have completed the FDR mediation.

Through modelling that confidence and talking about the process for decision making, parties can feel empowered and encouraged. Often the reason why parties cannot make a decision is because of the power and control dynamic over the decision process. Usually the party asserting a “power” or “right” is the person who feels least powerful in the process. Through paying attention to the fact that the parties have chosen to share power by creating their partnership can lead to a recalibration of the power control dynamic, usually through encouraging the parties to recognise that they have to share power with each other to create a result.

The presenter is a dynamic high energy speaker who models calm confidence in the message he is delivering. He is a perfect example that calm does not mean inactive or passive. Staying calm as a mediator; means being the anchor which holds the parties while they negotiate the stormy seas to reach their agreement.

 

By Denise Evans, Mediate.com
December, 2015

TESTIMONIALS

Thorburn Holdings (Pty)Ltd
"We would like to thank and congratulate everybody from the Mediation Centre involved with the conflict management training of our administrative staff on the 26rd March 2013 on a job well done. Everyone was impressed by the efficiency, knowledge and the manner in which they were equipped with the necessary tools to handle potential conflict resolutions in the future.
 
Our return on our investment can be seen in the increased productivity, teamness and positive atmosphere in the workplace. There is an excitement amongst them in anticipation of the follow-up training scheduled for mid June."

Connie Theron, Practising Attorney - UCT Law Clinic
“While working at the University of Stellenbosch Legal Aid Clinic and later at the UCT Law Clinic, I found the pro bono mediation services of Sandra Hitchcock and Gerrie van der Watt of the Mediation Centre to be highly professional and extremely effective in our divorce matters. It is fantastic that our clients, with little or no financial means, can benefit from such an excellent programme.

The mediators are able to provide a non-threatening environment in which the clients are able to talk openly about issues that matter most to them, but which the Court in a divorce matter may choose not to entertain. Through the mediation sessions, the clients are able to reach an agreement together which ultimately they are both happy with. In cases where mediation did not yield the result of a settlement, the process was still extremely valuable, giving the parties better perspective and highlighting the key issues in dispute.”