The Tenacious Mediator: Ten tips for “Moving the Mediation”

If there are three qualities that distinguish a good mediator from a great one, they are:

  1. Dangerous curiosity: great mediators are not afraid to follow their curiosity. This takes high level questioning skills to do effectively. In particular it requires gentle, non- judgmental, open-ended questions. Genuine curiosity is easy but it requires the mediator to completely set aside any preconceived judgments about the client and their motives, about explanations for things, and about potential outcomes.
  2. Deep compassion: great mediators are genuinely compassionate. They are kind people. They seek to find the reasonable reason for the unreasonable behaviour. They do not react with anger, frustration or judgment about the responses of a “difficult” They put aside their own feelings and opinions and accept that their own feelings are irrelevant to their work. They learn techniques that permit them to “sit with” the discomfort of hearing things they do not like. They replace judgment with a sincere quest for understanding.
  3. Relentless tenacity: great mediators do not give up. They seek from the first intake meeting to understand the client’s needs and motivations, and work tirelessly to help each client move productively towards an outcome that achieves as many of their needs as necessary to be “good enough”. They learn strategies and techniques to help the clients accept that the standard of success in mediation is merely “good enough”. They teach their clients how to negotiate safely, meaning they are empowered to listen without implying agreement, problem solve without blame and focus only on the narrowest aspects of a problem necessary in order to solve it.

Some tips to help mediators develop these capacities follow:

  1. From the intake meeting, begin forming a theory of the case. What is driving the conflict? What are the “elephants under the table”? How does each person handle feelings of conflict with the other? Make your preliminary assessment after each intake, but refrain from believing it until you have met both parties.
  2. Once you have formed a theory, question it. It is possible that there is another explanation for the behaviour of the parties? Approach this analysis from the perspective of negotiation power:
  • what is each person’s perception of their negotiation power?
  • Have you got all the information you need to fully understand this?
  • Have you conducted a comprehensive interview about all sources of power, including family violence, coercion, control, depression, anxiety, guilt, fear, rage?
  • Have you enabled the parties to feel safe in disclosing this information to you?
  • If not, continue to meet the parties separately until you feel they have done so.
  • Continue with separate caucuses for this purpose throughout the process.
  1. Use all communications with parties (and counsel) to advance your agenda of moving the mediation forward in a way that is safe. Use Bill Eddy’s tip of “B.I.F.F.” (brief, informative, friendly and firm) in all you do. Teach this to the parties and their lawyers when necessary. Encourage them to practice doing this with each
  2. Help parties keep track of concessions that have been made and their value. (Realizing that value is often subjective.) You can:
  • Discuss concessions made and given in caucus with each side often.
  • Encourage parties to keep a written list of each side’s concessions.
  • Discourage the making or demanding of concessions before mediation begins and, critically, learn during intake whether this has already happened.
  • If a party has made or demanded a concession prior to the mediation, identify and label it as such.
  • Help the parties understand that concessions are the stuff of mediation and must be fully recognized and properly accounted for if they want to achieve a settlement without duress or resentment, or, worse, reach impasse.
  1. Help parties identify their own patterns of behaviour. For example:
  • Without using personality disorder labeling, help the parties each learn and try techniques for managing difficult personalities.
  • Without judgment, engage both parties in strategic bargaining designed to keep the process moving.
  • Identify challenges such as poor impulse control, lack of self-awareness, victimization and use listening and reframing skills to focus each client’s needs and goals to tangible problems to be solved and tangible options for solving them.
  • Stay calm. Anxious clients will mirror your behaviour.
  • Use lists with anxious clients.
  • Identify the feelings you think a client is having with that client, specifically and in caucus. Help the client identify the feeling with words and engage them in discussion about what it will take for them to calm those feelings.
  1. Always treat parties with the utmost of respect. You can demonstrate this in many ways:
  • Learn, during intake, the range of communication, insight and problem-solving each client can tolerate.
  • Bluntly discuss what will make each client comfortable and uncomfortable during each intake. Encourage them to tell you their procedural needs.
  • Explain your role from a process vs outcome perspective to help them stay focused on procedural needs.
  • Use your control over the process to keep the mediation within that range.
  • Do not use insight-generating questions with a client who cannot tolerate such questions.
  • Use an empathetic tone of voice and words: “I care about you and want you to have success here. ”
  • Directly acknowledge the emotions of the client: “I can see this is really upsetting for you. ”
  • Use Bill Eddy’s “E.A.R” statements: empathy, attention and respect.
  • Avoid asking a client to consider how they have contributed to the problem if that is taking them outside of the range of conversations with which they can cope.
  • Respect the personalities of your clients.
  1. Move the mediation, as soon as possible, to the making of proposals. Do not force clients to explain their proposals. If the other party requires an explanation, use caucus to work with the proposing party to reach an explanation with which the client can live. Teach the parties how to productively bargain: make a proposal. They should respond to proposals received in one of three ways:
  • “Yes”
  • “No—and a counter proposal”
  • “Let me Think About It”—in which case the issue is parked but not forgotten.
  1. Use the language of the parties. If you have diagnosed lack of trust to be a driver of the conflict, identify that in joint session. (unless the trust relates to physical safety). Ask them what will it take to reestablish trust. Engage them in small trust-building steps. Keep the concept of trust on the table. Distinguish between personal trust issues (eg/ an affair) and transactional trust issues (eg/ hiding assets. )
  2. To help keep clients focused on moving the mediation forward, ask each, in joint session and in caucus, the same future-focused question over and over: what do you need? Avoid letting them dwell on the past:
  • “What do you need to move forward in this negotiation?”
  • “What do you need from the other person to give them what they want?”
  • “What will it take for you to say yes?”
  • “What will you give the other person to get what you want?”
  • “What are you willing to pay for that”?
  • “At what point is it better for you to accept their offer?”
  1. Keep the discussion focused on specific, real consequences. Do this in the context of the voluntary nature of mediation. Keep their respective alternatives (BATNAs) front and centre at all times. Remind parties that they are always free to end the mediation process. Keep the consequences of doing so, or of making a bad settlement, on the table at all times. Empower the parties to stay and keep negotiating or to safely terminate the process at all times:
  • “What are the costs of taking this to trial? How will you fund that?”
  • “How will you fund an order to pay the other person’s costs? Can you think of a better use of that money?”
  • “That is against the law. You could go to jail for that. Are you sure you want to take that risk?”
  • “You can walk away from this mediation right now and let a judge decide. It is not a failure to not reach a settlement.”
  • “What are your options if you do not reach an agreement today?”
Hilary Linton

About Hilary Linton

Hilary Linton is a Toronto lawyer, mediator, arbitrator and teacher. After litigating family and civil disputes for 14 years, she started Riverdale Mediation which is internationally recognized for high quality dispute resolution services and innovative ADR training. Hilary has been honoured with the inaugural James G. McLeod Professorship in Family Law at Western University Law School, and the Ontario Bar Association Award of Excellence in ADR in 2014. She has taught many ADR courses as an adjunct professor at Osgoode Hall Law School, Western Law and Toronto Advanced Professional Education.