Many of my fellow bloggers on these pages, and perhaps many of the readers, will have found themselves in the position in which friends, colleagues, workmates or others call on your/our mediation experience at short notice, and in circumstances that are perhaps not ideal in terms of planning and preparation. One of the strategies I typically discuss with students in negotiation and mediation classes is how to recognise and deal with the “ambush” negotiation – those times when you suddenly realise that you’re in a negotiation or when the decision that is being asked of you really does need a prior negotiation; and you do need to hit the “pause” and “rewind” buttons in order to give yourself time to draw on those wellsprings of negotiation experience.
A recent experience of an informally-requested intervention leads me to think of some of the resources we can bring as well as some of the risks that lurk in the undergrowth. I’ll need to be somewhat elliptical, of course, in discussing this – as is the case with all mediation, characters and events needs to be disguised. But you’ll get the picture.
The basic scenario is this: a small committee of voted-on volunteers has been managing a significant budget for a larger enterprise; the purpose to which the budget is directed affects a far wider circle of individuals, all of whom have understandable concerns about the progress of work being done, the information provided from time to time, and the prospects of any budget blow-outs. Most of that wider circle of people are, of course, deeply relieved that they are not the ones dealing with the ongoing headaches – not least the challenge of ensuring compliance with local government rules and regulations.
Two significant challenges emerged for the committee: first, the wider circle of interested parties has a Facebook page which, on the one hand, could be a venue for sharing information and updates and, on the other hand, was more likely to be a site for some fairly brutal observations about the progress of the committee’s work and the integrity of the members. Second, within the committee itself, divisions emerged over the direction the work was taking, the time the project was taking, the risk to the budget . . . and, of course, personalities. While I’ve not been privy to any of the Facebook “conversations,” the reports I’ve had from a variety of sources remind me why I don’t “do” Facebook and why social media can be such a toxic source of factional misinformation and character assassination.
This is where the informal mediation came in. A couple of chance conversations over coffee led to the suggestion that we – my wife, Suzanne, and I – might be willing to talk to one or two people about the directions things were going, especially the descent of communication into name-calling and the risk to the decisions affecting the overall enterprise. The committee also expressed the hope that we might be able to “ease” the conversation towards a particular outcome. We agreed; we had those conversations; we await the smoke signals as to whether anything at all has changed – and though we’re reassured that the tone will be moderated on the Facebook conversations we’re not confident that there will be lasting peace.
Editors Note: Here is the first mistake already, when a Lawyer attempts to mediate a problem there immediately arises a conflict of interest between their clients interests and those of the adversary. A mediator must remain impartial and unbiased throughout the entire process. Ideally the parties to the process should not be able to tell what the Mediators position was other than neutral.
The reflections I have are these for the coincidental mediator:
1. There’s a risk that the request to engage one’s mediation skills (albeit informally and unofficially) can be a disguised request to do the difficult work the committee – or the individuals making the request – need to make. Think of those time when you might have been asked to act as mediator and, after initial inquiries, it becomes plain that what’s actually needed is a management decision which is being avoided by opting for mediation.
Editors Note: In such a Corporate environment where decisions need to be made, the coincidental mediator correctly identified the issue, but not the
opportunity. Corporate, Commercial and Contract Law often in these stages of
conflict and negotiation ought to invoke Mediation to do just that, help
facilitate a speedy resolution and enable the parties to make those management
2. There’s a risk in being seen as the messenger for one or other of the factions, in approaching selected individuals. This might well be a classical version of the mediator – indeed, some of the traditional models from which modern mediation borrowed have the mediator as the go-between (the “moccasin man” in American First Nations experience); and there will be many modern practitioners who only act in that go-between role, if the parties cannot or will not talk directly with each other. The risk nevertheless remains for the intermediary that she or he is perceived, fairly or otherwise, as the bearer of and agent for the message of the other party.
Editors Note: Once again the coincidental mediator finds himself in a position that a professional mediator should never be in. This highlights perfectly why when it comes to mediation it’s better to leave it to the people who have been professionally trained in facilitative mediation. This is also why Mediation sometimes gets a bad name, as the parties are told what is happening is “mediation” but in reality it is an ad-hoc situation that in the end ultimately does the opposite of what is intended with mediation, which is in these situations to preserve the relationships and build trust.
3. Equally, in understanding the position of those people with whom we talk, and giving them the possibly rare experience of being listened to, there’s a risk that we – the mediators – will be seen as allies. This is classic Karpman victim triangle stuff, in which the mediator is seen as a rescuer and is, just as easily, seen as an ally of one or other of the factions – and especially of anyone who feels already sidelined but the history of the preceding events. Indeed, we needed to remind one of those with whom we spoke that, just because we listened to and respected his stance, that didn’t mean that we were now his “supporters”. Think too of the success that the central character in Twelve Angry Men (the 1950s version) has in seeking and finding “recruitable allies”: the informal mediator might well be seen as one of those – and even if Henry Fonda’s character prevailed, being ‘recruited’ undermines that essential mediator role and neutrality.
Editors Note: Its clear the coincidental mediator has found himself in all sorts of bother now, unqualified, unprepared, seen as a rescuer of one side, an ally of a faction that has been recruited, there is no trust left here and worse still the relationships that did exist have only been soured with his involvement. Even worse for the Mediation profession when the parties start to talk about what happened and what a disaster “mediation” is.
4. There’s a risk of self-interested misreporting – for example, I heard indirectly that I apparently had told one of the parties that I (trusted adviser, legal trained mediator etc) that a thoroughly undemocratic process was warranted in order to deal with dissent. That had to be stopped at source promptly.
Editors Note: The coincidental mediator has all but ruined his own reputation at this stage and left the parties with a sour taste about “mediation” itself as a form of Alternative Dispute Resolution. This article is a good example of why parties when considering Mediation ought to start with places like the Australian Mediator Standards Board if they are genuinely wanting to resolve a dispute, then somethings are best left to the professionals.
It’s not all risk and recrimination, of course: the very act of agreeing to start a conversation is likely to have defused some of the animosity and dispersed some of the anxiety. What matters next is that this conversation – and the tone of the conversation – continues. And in that respect, the coincidental mediator can be at least a circuit breaker.
Editors Note: No even in conclusion, the coincidental mediator is mistaken, by his own recount of the events it can be seen he bumbled through the process and made a mess, caused distrust in the relationships, ruined his own reputation and the reputation of the mediation profession in the process. Circuit breaker indeed.
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Original Article By : /, Source: Kluwer Mediation Blog