Before you even walk into the mediation room, a mediator should consider the kinds of emotions and degrees of these emotion that may be exhibited by each party, attorney, or permitted attendee in the mediation. One place to learn about these potentialities is by speaking in advance with counsel for the parties. Another is to consider the facts known and cross-reference this to past experience mediating with stakeholders over similar scenarios or facts. Paramount to the success of the mediation is your safety and the safety of others. As Sean Connery states as police officer Jimmy Malone in The Untouchables, “make sure when your shift is over you go home alive. Here endeth the lesson.” At the beginning of the mediation, when addressing housekeeping matters, it is becoming more common to ask that if anyone has any weapons, that these be removed from the building, perhaps placed in one’s vehicle, before the mediation begins. While such may seem an odd or uncomfortable question in mediations with low risk clients or when assisting companies on an inter-corporate matter, there are times when the clients say yes, and they are gracious to stow the weapon someplace else before the mediation begins. If you are very concerned about the risks associated with the participants, another option is to hold the mediation at a building that has an entryway security check. One must consider these risks beforehand so the raised voice and the strongly worded statements are the likely limits of what may happen in the room.
The ability to establishing trust is an essential element of consistently effective mediators. By sharing about the mediator during the opening session, the mediator can express expertise and competence; by speaking kindly and listening, the mediator can help avoid party ears from closing up. Ensuring the parties know the mediator has no bias and is neutral can help keep those ears open to what the mediator has to say when it comes time for the mediator to be the agent of reality.
At times, what can help bring about settlement is an opportunity to vent. But more than an opportunity, sometimes people, the parties in particular, need to know they have permission to vent. Some have been told all their lives to hold in their personal feelings, not to share emotion. The mediator who allows and enables parties to feel comfortable sharing feelings may then assist the having vented party with approaching the issue from a new or freer perspective. Bottled up emotions can cloud judgment when seeking a settlement from those who have not yet felt heard or released pent-up emotions related to the matter under discussion.
Reassure those expressing emotion that such expression is reasonable, appropriate, and normal. Empathize. This is an opportunity to help the party through a difficult or traumatic sharing, and in the process the mediator builds a trusting communication with the party.
Watch carefully for emotions that are implied but not actually expressed. When these are perceived, that is an opportunity to consider affording the party the chance to develop a further thought or expression about that issue. This, again, is a form of permission that can aid in the comfort level of the party to open up about what is really bothering them. The mediator can even be direct and say that speaking of or about a feeling is, itself, part of the mediation, communication, and conflict resolution process. The mediator can also indicate to those situated as listeners that hearing this feeling and acknowledging it can help to resolve the underlying issues so the parties can then address the possible solutions.
Sometimes in the sharing party releasing emotion verbally, the listening party will feel disrespected. When a party disrespects another, it is a challenge for the mediator to remain neutral, maintain the appearance of neutrality, and also address the communication that is objectively or subjectively seen as disrespectful. One thing the mediator can do is assure the parties that what happens in the mediation stays in the mediation, that this is a confidential conversation, that you hear what each party is saying, and that you are listening to both sides asking that they listen as well, assuring the parties each will have the opportunity to speak. The mediator can reframe disrespectful words into a more diplomatic expression that speaks to the facts of the matter for both sides to hear. The mediator can ask each party if what the mediator rephrased might possibly make sense.
When the parties are engaging each other, however, the mediator often will get best results by staying out of it— meaning the mediator allows the parties to go about the exchange as though the mediator is just an empathetic fly on the wall engaged in active listening. What is being said is often what needs to be said and has not, or what needs to be said one final time before addressing resolution. This can be counterintuitive, because often the more emotional the topic, the more the mediator needs to go about enabling the communication about it, yet the higher the potential risk for parties kicking in heals as a result. The astute mediator has to know when to separate the clients into caucus. One way to do this is to ask a party if this is a comfortable topic to discuss jointly. The mediator may even step outside with the client and privately ask if the client would prefer to have a private caucus on this topic. The mediator should also remind the parties the joint session can begin again at any point. Many times that happens when nothing new is being said and the parties are merely repeating themselves, though a brainstorming session of potential solutions could then also be a path toward redirecting the conversation.
Another approach to consider involves addressing the client individually about feelings or emotions. This can be done with or without the attorney present, but if the attorney is not present, the mediator should first have asked the attorney if it would be alright to engage the client privately. Discussions about underlying emotions can sometimes be more successful in private even from the attorney, depending on how open, guarded, or self-conscious the client may be. During a long mediation, the attorney may want a break anyway, or at least to step away, so a discussion of emotion can dovetail with giving the attorney some moments to decompress. This also ensures the attorney has additional options of being present or not, taking a break or not, potentially being part of engaging the client about emotions or not.
All the while during the mediation, the conscientious mediator should be conscious of whether he or she being— or is coming across— as judgmental. A mediator is a neutral, without bias and should strive to walk that middle ground. Still, the mediator is the advocate of reality and reason, particularly when the parties (or either party in caucus) asks for the mediator’s opinion. Part of not being judgmental or seen as such is controlling overt signs or tells (as in poker tells) of opinion about the clients themselves. A client will not open up and may shift away from trust of the mediator if the client feels judged or ashamed based on a reaction from the mediator, even a non-verbal expression. The mediator can help the client to find emotional footing to move ahead with the business at hand when the client feels heard and supported as to the emotions expressed. Finally, an astute mediator should have a high tolerance for emotional upset by those participating in the mediation. Respect, empathy, and patience go a long way toward resolution when the client feels and is heard. The way that people relate to each other is via emotion. So a mediator with strong emotional perception abilities, who is sensitive when interacting with the parties and the attorneys, will build a natural trust that can be the foundation for moving ahead toward resolution of the problem that the emotions underlie.
Overall, mediation may stem from a legal issue, but the decisions that underlie the actions that give rise to the issue are often emotionally driven. A mediator should pay close attention to emotions in all their manifestations to ensure the best chance for conflict resolution.
About the author: Andrew Tolchin is an attorney and mediator in the greater Houston area, and founder of 713 Mediator, LLC and Tolchin Law Firm, PLLC.