The Art of Guiding the Mediation Process

There are various forums where people can participate in conciliation efforts to reach a resolution. Generally speaking, most people try to avoid conflict, and parties are happier when they can resolve a dispute and move on. Mediation is a collaborative form of dispute resolution that allows the parties to work together to resolve their conflict. The mediation process is anchored in trust and effective communication. Every case is different, and each party arrives at the table with certain goals in mind and a strategy for achieving them. Their needs define their goals, which dictate their behaviors. The mediator plays the important role of “shepherd” in the negotiation process. The parties can impede the prospect of settlement, and so can the mediator—by their approach. 

As a former commercial claims professional, I have encountered mediators with an authoritarian style. I was the representative in the room with the authority. Surprisingly, this was often overlooked, which became apparent as the session proceeded. It is very important to show regard for the decision-makers at the table. If the stakeholders feel disregarded, it will be more difficult to influence settlement.

In commercial insurance-related matters, the adjuster is most likely a very sophisticated negotiator and the person directing the negotiations—and in control of the company checkbook. Defense counsel may not be privy to the company’s strategy or the adjuster's authority. Negotiating is an art, and there is a psychology to negotiating. The mediator’s ability to influence settlement is earned through being patient, listening, probing, reality-testing and guiding. A mediator should not undertake an advisory role, which is beyond their scope, not to mention an ethics violation.

The People

I have been teaching how to apply the impact of personality styles to negotiation behaviors for more than two decades. My understanding of the human condition and ability to discern parties' motivations and needs in a mediation make me a more effective facilitator of compromise.

The reality is that people appear at the negotiation table however we find them. In insurance matters, the defense side is making a business decision based on exposure, whereas the plaintiff usually has an emotional investment in the outcome. Successfully navigating this fosters settlement. The mediator’s ability to engage in active listening, garner the parties’ trust and employ effective reality-testing will determine their effectiveness. The facts are the facts. Parties depend on the mediator to skillfully obtain information while they are shuttling from room to room, that can be shared to assist with closing the analysis gap on how the parties see the same set of facts.

The Personalities

It’s important for the mediator to get to know the parties and what their needs are. This information helps the mediator craft a “theme” for what they communicate, how and when.

The parties have expectations, which are communicated through their behaviors. Every round of negotiations offers clues as to what they are willing to compromise on to get what they want or feel they need.

The Process

Managing expectations and the power of suggestion are tools that can influence progress at the negotiation table. Effective mediators monitor and regulate the temperature in the negotiation in all the rooms. Mediators have various styles of facilitating and they should always use methods that fit their style.

It can be tempting for the mediator to share their personal knowledge of the subject matter. This may be acceptable in certain circumstances, as long as the mediator doesn't impose their will on the parties. Knowing the subject matter and being skilled at communicating the parties’ interests while facilitating compromises is the key to crafting a mutually agreeable resolution. It is helpful to use the strategy of facilitating small concessions that can lead to larger concessions. Psychologically, parties are more inclined to continue compromising once that pattern has begun.

The mediator is not a judge. Their job is facilitation, not adjudication. They have no authority and must keep in mind their limitations as influencers at the mediation. The self-determination canon of mediation must always be respected. The mediator is in control of the process, not the parties. They cannot, as a matter of ethics, insert themselves into the management of the case. It is their job to help discover and convey possible deficiencies in the parties’ positions, not deficiencies in counsel. To ignore this is to dismantle the very structure upon which trust is built at mediation.