This year, several of my mediation clients asked me to skip parts of the mediation process either before the mediation started or during the mediation itself. In these circumstances, it was to demonstrate their frustration with the other party and or create a power imbalance. Legal counsel once asked me to do away with the opening statements altogether and in another instance; counsel interrupted my opening remarks and asked me if I was “seriously going to continue with them?” The comments created immediate challenges to me and the mediation process not to mention the impact on the other party and their clients.
The counsel that asked me to skip the introductory statements asked before the mediation started and as such, I had a few moments to address their concerns. Thanks to the time spent addressing the party in a thoughtful and careful way; they decided to move forward in joint session. Nonetheless, after the opening statements everyone agreed to continue the mediation in a shuttle format. The parties did meet again to shake hands and thank each other for their participation.
However, in the second example, when legal counsel asked if I would seriously continue with my opening statement, I simply responded “yes” and moved forward. This answer came with a great deal of internal dialogue as it was not to be ignored: Do I stop my introduction and address the question directly or in caucus? If I caucused immediately, how would it be perceived by the second party? What was the impact of the question on the second party? Could it give the first party the upper hand believing they could control the entire mediation and subsequently me? Would the second party feel as if I was allowing the first party to take over and that I somehow sided with them? And finally, what if I simply said yes, and caucused with the first party at the next reasonable opportunity? In those very brief moments, which seemed an eternity, I decided on the latter; that I would caucus when the appropriate time arose. So, immediately after opening statements, I caucused with counsel and their client. I had never caucused with counsel before and it began with a discussion around respect for everyone one in the room including the mediator and the mediation process. It was admittedly uncomfortable, but counsel returned to joint session… and promptly withdrew a newspaper from their briefcase with great animation and began reading the paper.
While these two scenarios were unusual to me, they were wonderful learning opportunities that demonstrated the importance of process. If at any point the process is disrupted, it’s important to get back on track so that everyone is able to continue, should they wish. As a mediator, keeping the process running smoothly is important so that everyone has the opportunity to be heard, get to the heart of the matter and assist in resolving the conflict, if applicable.
Your Take-Away: Trust in the Process
The Mediation Lady
Helen Lightstone