One common presentation topic at conferences and networking events is “Tricks of the Trade” – a talk about mediation techniques that a mediator can use, usually without the parties’ knowledge, to get the parties talking or to move the parties towards a resolution. This topic appeals to mediators because there is a common perception that mediation is a magical process that resolves intractable disputes, and that if we as practitioners can learn to do that magic, we will become a successful mediator.
I am here not to dispel the concept of magic in mediation, but to posit that secrecy is the enemy of said magic. I believe open and honest disclosure about what you are trying to do is the more effective way to mediate, and furthermore, it ultimately demonstrates commitment to the values of alternative dispute resolution as a whole.
For example, one technique that mediators use is to preface their restatements with the phrase, “I need to make sure I am understanding what is going on.” This technique is used to suggest to the parties that the restatement of the opening statement is for the benefit of the mediator, while secretly it is directed at helping the opposing party to hear the same statement from a more neutral voice. While in fact the mediator does need to understand the facts of the case, this technique is going to get stale if you repeat it over and over in one mediation. The better option is to say, right after the first opening statement, that “I will be restating what you have told me, both for my own benefit to make sure that I understand you, but also for the benefit of communication, because the other party will hear your statement from a neutral voice and perhaps they will then be able to understand it better.” If you say this, the parties will get a preview of the type and degree of open communication that you are hoping they will use with each other.
All mediators have an interest in the parties communicating to each other and understanding each other, regardless of the outcome of the case. It follows that, just like the parties, the mediator should make his or her interest in communication known. If the mediator feels strongly about a particular case reaching some sort of resolution, the mediator should also reveal that interest (without taking sides!), because that desire to reach a resolution will affect the mediation whether the mediator is aware of it or not. In most cases, the parties will not be offended by a mediator’s desire to reach a resolution.
Tricks aside, the more open and transparent you are about how mediation works, the more the parties will trust that you are taking them seriously and that you are giving them the opportunity to exercise self-determination by being informed about the process. Furthermore, you might even teach them how to mediate their own conflicts by themselves, which (might be bad for business) is ultimately better for society.