How Directive Should a Mediator Be?


MP900387517I recently mediated a case in which, after some lengthy and loud discussion between the parties, I proposed a settlement amount. I caucused with each of them separately about the settlement amount, and told them the case would not settle unless they both agreed.

They ultimately agreed to the amount, but neither of them was happy about it. Since resolving this case, I’ve been mulling over whether I was too directive.

The case was between a formerly co-habiting couple, and one owed the other money. We’ll say the man (M) owed the woman (W) money. They agreed that M owed some money, but, of course, they disagreed on how much. Hence, the lawsuit.

By the time of mediation, both M and W had moved on to other relationships. It was both in their interests to conclude this old relationship and concentrate on their future lives with new partners. They recognized the importance of letting the past go, but they each wanted the monetary issues resolved on their terms. In fact, they were so hung up on “winning,” that they were not focused on their interests, but on hurting their former partner.

How Do You Deal with Conflict? Use of the Thomas Kilmann Conflict Mode Inventory in MediationThey were both clearly in the “Competing” portion of the Thomas Kilmann Conflict Mode Inventory, and I joined them there. Maybe I should have taken a different approach to conflict resolution.

But I believed the case should settle. The parties were not willing to compromise, so I proposed a number in the middle of what they each claimed M should pay W. If my number did not work, I was going to declare the mediation at an impasse.

I had told them before we got started that they were both free to say “no” to anything the other party or I proposed. I told them again when I proposed my number that they were free to say refuse. I told them there wouldn’t be a settlement unless they both agreed.

I admit to pushing them to seriously consider my proposal. But I told them again they were free to refuse it. We sat in an uncomfortable silence, then they did agree.

I wrote up the agreement, and they signed.

Did I push too hard? This is an issue that mediators face in every case. How directive should they be? Should they propose a number like I did, or sit back and do little more than making sure the parties do not physically or verbally abuse each other? Or something in between? It’s a judgment call in every case, though each mediator has his or her own style.

Only time will tell in my case. It will depend on whether M fulfills his obligation to pay W the amount they agreed to on the schedule they agreed to. A settlement agreement is only as good as its execution.

But in the meantime, I will be thinking about how I can resolve cases while making sure the parties feel ownership for the result. Next time, I might not be so directive.

Negotiations and mediations don’t have to be formal, like the case I described. We get involved in resolving disputes every day, between family members, colleagues, and friends. In every situation, we have to decide how to approach the parties, how to persuade them to be reasonable (if you can).

When have you been in a negotiation and maybe pushed too hard?

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Filed under Human Resources, Law, Management, Mediation, Workplace

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