Mediation Mind Shifts Series: Part 3A
Opening "Mindfully": Mediator Methods
By Harold Coleman, Jr., Esq., CCA, Senior Vice President, AAA-ICDR®; Executive Director/Mediation, AAA Mediation.org®
Mediation Mind Shifts are the critical, incremental shifts in thinking that must occur to move people embroiled in conflict from entrenched, diametrically opposed positions at the outset of mediation toward the goal of resolution at the end.
These shifts transpire in the parties’ perspectives on the people involved, on the law applied, on the “facts” interpreted, on the risks assessed—and on the very possibilities presented through mediated problem-solving and settlement negotiations.
This post addresses the opening phase of the mediation process. The mediation begins with opening presentations, otherwise known as "opening statements." These in essence are initial remarks of the mediator, party representatives, and other potential participants.
The focus here is on how mediators can open "mindfully"; i.e., in a manner that sets an appropriately positive tone for constructive dialogue and genuinely collaborative, joint problem solving. The next post will be on counsel openings.
As the Greek philosopher Plato remarked in "The Republic," The beginning is the most important part of the work."
Opening Presentations Should Be Purposeful
The purpose of the opening is to summarize parties’ key perspectives, positions, and other information important to other parties’ understanding of the issues framing the conflict or dispute.
Although commonly referred to as “opening statements,” mediators can temper the connotation of argumentative statements typically presented at the outset of a trial or other adjudicative proceeding by using the somewhat softer term "opening remarks" or “initial presentations."
Regardless of party affiliation, the most effective opening presentations create a vision for saying “yes." The mediator may do this by:
- acknowledging appreciation for all parties' agreement to use mediation as a tool for reaching resolution;
- emphasizing mediation's general success in achieving resolutions that possibly can mend and strengthen relationships;
- taking disputing parties back to a time when things worked well between them and encouraging work to get there again;
- acknowledging existing areas of agreement; and
- creating a futuristic vision of parties walking away from mediation with issues resolved, keeping in mind the steps required to get there.
Opening Presentations Should Be Framed Strategically
Effective mediator opening presentations typically follow this framework:
(1) Welcoming remarks and introductions
(2) Explanation of the mediator's role and authority
(3) Review of the proposed mediation process
(4) Explanation of confidentiality
(5) Overview of logistics, such as agenda structure, refreshment breaks, and, in live mediations, facilities
layout
(6) Addressing participant questions and concerns
(7) Eliciting participant suggestions and input
(8) Securing commitment of all participants to the agreed-upon protocol and willingness to begin the
process
Opening Presentation Content Must Be Crafted Carefully
The words used to begin a mediation are critical. A sound opening presentation achieves a positive tone and protocol for the session, initial rapport and trust building, and positions the mediator in a place of "control" of the session.
The importance of trust building cannot be overemphasized; this is “Job One” for any effective mediator.
Without trust, the mediation process can deteriorate quickly and, worse still, inadvertently escalate the underlying conflict.
Without trust, participants will not be willing to share the private and confidential information necessary to a mediator’s understanding of the dispute. This understanding is crucial in order for the mediator to generate creative options for consideration.
Without trust, participants will not be able to earnestly consider the mediator's thoughts and recommendations and do the "heavy lifting" required to arrive at mutually acceptable outcomes to the mediation effort.
Three essential questions weigh heavily on disputing parties' minds early in the mediation process. Answers to these questions play a tremendous role in determining if a mediator is in fact building trust. The three essential questions are:
- Can you help me?
- Can I trust you?
- Do you really care?
Can you help me? Here, parties want to know whether a mediator has the requisite skills, training, experience, and overall understanding of the subject area in dispute to meaningfully assist them in reaching mutually acceptable outcomes. The question of whether a mediator is in a position to "help" typically can be gleaned from the mediator’s biographic materials.
Nonetheless, effective mediators will take the time to outline or recap salient aspects of their background to parties at mediation in the attempt to achieve a quick subjective "yes" in the minds of participants to this essential question.
Can I trust you? At mediation, parties need to be assured that the most private and confidential areas of their lives that might be revealed and explored at mediation will be safeguarded at all costs. They need to know that their "secret's safe" with the mediator. Without this trust, the mediation is likely to go nowhere. Until this intrinsically personal need is met, no amount of education, training, and experience will satisfy a party's deep desire for basic trust.
Therefore, mediators are well advised not to rush the process and jump immediately to problem solving shortly after delivery of party opening presentations. Rather, they are encouraged to exude genuine concern for parties and the problem at hand in a neutral and even-handed way. These are key to establishing trust.
Do you really care? The old maxim, "Don't show me how much you know until you first show me how much you care" certainly comes to mind here. Mediating parties really want to know the underlying motivation for a mediator's willingness to step into the world of disputing parties—a world characterized by conflict and intense emotional angst—and assist them with the difficult problem solving required for a mutually satisfying resolution.
Consider these beneath-the-surface questions emerging from this inquiry: Why are you doing this? Are you really interested in helping me, or are you more interested in your own self-serving goals (for instance, one's overall settlement rate, ancillary income from mediation work, professional stature and recognition and the like)? Are you passionate about people and problem solving? Do you really care about my plight—and me?
When a party subjectively checks "yes" to this box, a high degree of trust has been established, and the mediation can proceed. The focus then becomes maintaining and reinforcing that well-earned trust throughout the process as it unfolds.
Questions to Reflect on:
- What kinds of opening presentations have I observed to be particularly mindful and effective?
What made them so?
- What might I change in the content and delivery of my opening presentations in the future to set a positive tone and one more conducive to cooperative problem solving?
- How might I change the words and language I‘m accustomed to using at mediation to those more encouraging to productive communication and trust building?
Check back soon for the second part of this post. OPENING “MINDFULLY”: COUNSEL CONSIDERATIONS continues with thoughts on how to set the stage for a productive mediation from the attorney’s perspective.
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