Tag Archives: control

Should a Mediator Let the Parties Vent?


conflictI attended a mediation training program several months ago in which the question was asked: As a mediator, should I let the parties vent or should I control what they say to each other?

First of all, let’s recognize the absurdity of thinking that a mediator can control what the parties say. A mediator can help the parties shape how they communicate, but the mediator cannot control anything.

But it is a good question to ask whether and how the parties should vent their emotions during a mediation.

I always believed–both as an attorney with clients and witnesses who were sometimes distraught and as a mediator trying to resolve sensitive disputes–that emotions were part of the case and needed to be recognized. Still, how those emotions are dealt with can affect whether the parties will reach agreement. I often found myself in the position of absorbing my client’s venting, or, in a mediation, one of the parties’ venting. I listened to them, and sometimes just having someone listen to them diffused the emotional tension in their conversation and they could move on to settle the case.

Early on, the mediator needs to assess how the parties are communicating. Can they express themselves well? Can they describe their feelings in addition to the facts? Do they listen to each other? How do they react to each other’s statements about their feelings? If the parties are already in a situation that requires mediation, it is quite likely that one or both of them cannot deal with their emotions and/or those of the other party. If they both could address the facts rationally, they would settle the matter themselves. But if they can’t deal with their emotions effectively, the mediator will most likely need to intervene.

How can the mediator intervene?

One way is to hold separate caucuses with the parties. In a caucus, the mediator can listen to the emotional content and help filter it. Then the mediator can coach the party on expressing his or her emotions in a less confrontational or blaming way. Alternatively, the mediator can convey the party’s position through shuttle diplomacy and decide what to share with the other side. Both of these methods can defuse tension. Which to use depends on how capably and quickly the party can learn to express his or her feelings constructively.

Another method to use, particularly when caucusing is impractical, is for the mediator to rephrase the emotional statements in a way that recognizes their validity but doesn’t blame the other party.

So, for example, the mediator might rephrase Employee A’s statement “Employee B is always bad-mouthing me to everyone else in the department” into “When Employee B says something about how you handled a task, you feel he is telling other people you aren’t doing a good job.” When Employee A agrees with this statement (he will likely agree or expand on the statement), then the mediator can turn to Employee B to ask, “Do you mean to imply that Employee A isn’t doing a good job?” Often this will lead to a fruitful discussion about what was really meant.

Emotions have to be considered in any mediation. How they are dealt with will depend on the parties’ communications skills and past relationship. The mediator needs to address the emotions, but must also understand that control is impossible.

When have you had to diffuse emotions during a negotiation?

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Managing Yourself as a Mediator


MP900387517I wrote several weeks ago about communicating with high-conflict people. In the seminar I attended, Bill Eddy of the High Conflict Institute also made the point that mediators and counselors working with high-conflict personalities need to manage their own responses during problem-solving sessions. It is a sure bet that you will face resistance from the high-conflict person, so you need to control yourself.

Although the focus of Mr. Eddy’s program was on high-conflict personalities, anyone can become high-conflict when we deal with emotional circumstances, which many disputes are. Thus, most of what he said has applicability in almost all mediations.

Here were some of his tips:

1. High-conflict personalities have a hard time with problem-solving. They need a structure. Your role is to provide that structure, but NOT TO SOLVE THEIR PROBLEM. Repeat again: Your role is NOT to solve their problem—that is THEIR responsibility.

2. Your focus should be on managing your relationship with the parties to the dispute, NOT to manage the outcome. Repeat again: Your role is NOT to manage the outcome—that is THEIR responsibility.

3. The three skills you need to have when mediating high-conflict disputes (or, really, any dispute) are

  • Connecting with empathy, attention, and respect
  • Structuring the dispute resolution process, and
  • Educating the parties about the available choices and the consequences of their choices.

Each of these skills is worthy of a post in its own right. But for me, the most helpful advice was to step back from managing the outcome to structuring and managing the process.

I know as a mediator I sometimes am too directive and occasionally too passive. It is too easy for me to jump to what I think the outcome should be, and then pushing toward that outcome or giving up when it seems the parties will never get there.

What I took away from Mr. Eddy’s program was a reminder to keep myself from owning the outcome. I need to remember that reaching a resolution is the parties’ decision, not mine. I learned that in my mediator training, but it is easy to forget. We all want to take control when we think we know best.

When have you taken responsibility for a problem that wasn’t yours to resolve?

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Filed under Human Resources, Management, Mediation