If there are cardinal sins in mediation, mediator bias may well be number one (perhaps tied with breaking confidentiality). Nothing will end credibility quicker than the appearance that the mediator is taking a side in a dispute. But how do mediators, mere mortals (it’s true!), maintain neutrality? What tools are available to combat the very human tendency to make and pass judgment? Below are a few that might help you the next time you are in the room.
Perhaps you’re an attorney. Perhaps you’re a therapist. Perhaps you’re the middle child. Whatever it is that draws you to resolve conflict, you’ve hit on the idea of making an impact through mediation, and you want in. If so, The Center for Conflict Resolution’s 40-hour mediation skills training may be for you!
A rose by any other name…
Language is one of the mediator’s most valuable currencies; the words you use in a mediation can make or break a session. Think, for instance, about the difference between calling something a “plan” versus calling it an “agreement.” Most parties may be able to get behind creating a plan for moving forward, while many will bristle at the idea of agreeing to anything the person on the other side of the table says.
But how do you know what language to use? What are the guiding principles you should follow? This post will guide you through some of the concepts you should be thinking about when approaching language as a mediator.
How do you prepare when you don’t know what’s coming?
You often don’t know what you’re getting when you take a case as a volunteer mediator with CCR. You may not even know what type of case you’re going to be mediating if you volunteer with one of our court programs. It’s something of a gamble - you don’t know what might be at issue in the dispute, and you don’t know where the parties are going to be emotionally. So, aside from all the training you’ve received, how do you prepare for the unexpected?
What does reflection look like for a mediator and why do it?
Thoughtful reflection is not the act of ruminating on or second-guessing your decisions in a particular exchange or mediation session. Instead, reflection involves stepping back from your experience in the mediation, trying to be objective, and seeing what you can take away from it. It may feel unfamiliar and uncomfortable at first. However, you will discover ways you can do better in your next mediation by examining what did or didn’t work in this one, and by discovering the assumptions or habits underlying your choices.
Think your mediation skills only work in the mediation room? Here are the stories of two people who found otherwise...
Training Comes In Handy On The Train
Ricky Flores, a 3L at John Marshall Law School who has mediated with CCR through the John Marshall clinic, found himself using his mediation skills on the Pink Line one evening after school on his way to Ogilvie.
An older gentleman was trying to pass between two train cars using the door at the end of the car, but a security guard with a dog was in the way and wouldn’t let him pass. Soon a shouting match between the older gentleman and the security guard erupted. The security guard yelled that he could lose his job if he let the man through. As the shouting match continued, two other security guards came up behind the passenger. The passenger did not seem to notice the guards, but it seemed as if the encounter could get physical.
The Mindful Mediator
Want to confuse Google? Search for “Mediation and Mindfulness.” The search engine won’t even ask if you made a mistake – it will assume one and include “Meditation and Mindfulness” results. But what would it look like to apply the practice of mindfulness to the practice of mediation?
Being present is one of the most important skills a mediator can develop. We must remain present to the parties, present to their emotions, and present to their stories. It is this presence that allows us to actively listen and assist the parties in exploring possible solutions to their conflict. We, as mediators, must also remain neutral both to the parties and to the outcome.
Not all mediations end in an agreement. One question that many participants often ask before beginning mediation is, “What happens if we don’t reach an agreement?” Unfortunately, there isn’t one single answer that will cover all situations. However, a mediation that does not result in an agreement can still be worthwhile.
CCR’s recently established Reflective Practice Group (RPG) grew out of a desire to provide a space for deep reflection on the practice and theory of mediation. The group is open to any mediator whether they are a volunteer with CCR or in private practice. RPG consists of mediator peers non-judgmentally exploring the assumptions and motivations that underlie the interventions mediators make during mediations. Rather than Monday morning quarterbacking the choices a mediator made during a particular mediation, we discuss in depth what led the mediator to take a particular course of action and whether there were conscious or unconscious assumptions and motivations at play for the mediator that may have impeded or curtailed progress in the mediation. Participants also discuss best practices, mediator ethics, and mediator tools.
There are many tools in the mediator’s toolbox, and the process would not work but for any number of them, including neutrality, non-judgment, active listening, … the list goes on. One of the defining characteristics of mediation is confidentiality. Confidentiality helps provide a space where parties feel comfortable sharing intimate details that one would not, under normal circumstances, confide in a stranger.
Frank D. Hill is a volunteer with CCR. In addition to this blog, Frank helps manage CCR's social media presence.