I 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?