Mediation is a dynamic, structured, interactive process where a neutral third party assists 
disputing parties in resolving conflict through the use of specialized communication and negotiation techniques. All participants in mediation are encouraged to actively participate in the process.
What should happen in mediation -behave professionally, create a controlled environment, explain things clearly and, almost as an afterthought, brief people about what’s going to happen. And yet this person’s repeated mention of the lead mediator suggests there was something striking about her approach. The claimant clearly felt in very safe hands.
There are some things that are important in mediation.
Trust: “the professional way it was done”
The mediator had clearly gained the individual’s trust (and the other party’s – note the reference to no challenges). How did she do this? I imagine in part by her actions. Winslade and Monk, in their 2001 book Narrative Mediation, say of trust: “It is primarily an achievement, or a moment-by-moment series of little achievements.” Yet trustbuilding has an equally important negative side – NOT taking actions that betray trust, such as revealing confidences or causing someone to lose face.
At the same time the statement speaks of being as much as doing. Mediators must be seen as trustworthy – “the sort of person you can trust”. I have a hunch that effective mediators share an unwritten code of values, most likely built up by trial and error. Examples would be treating everyone as if they’re well-intentioned (Bush and Folger articulate this in their Ten Hallmarks of a Transformative Mediator); assuming that if something’s a problem for one it’s a problem for both; being careful and consistent about what’s confidential and what needn’t be; and the right combination of patience and impatience. It sounds odd but clients tend to appreciate both telling their stories AND being kept on track.
Setting: “the controlled environment”
This speaks both of physical setting and atmosphere. Effective mediators care deeply about what’s around them. They understand a simple truth: if the room isn’t right, most people won’t notice. But they’ll blame the other party or the mediator if things don’t go well.
“Atmosphere” refers to the intangible yet instantly detectable feeling in “the room”. To an extent it wafts in with the parties. Humans are pretty good at detecting atmospheres: warm, cold, wary, angry, defensive. Yet they can also trigger and exacerbate each other, one reading wariness as coldness; another reading nervous laughter as mockery. So alongside the physical environment mediators need to shape the atmosphere. If things are fraught they calm it down. Faced with despair they pep things up, injecting energy and focus. And if someone’s angry and threatening they have the confidence to steer into conflict, curious about what’s behind the behaviour. They use their whole humanity: tone of voice, facial expression, hands, posture.
Preparation: “a proper briefing in advance”
Again much could be said. Because mediation is a mystery to most we need to explain what we’re about. This is not the same as the traditional mediator’s intro. What’s going to happen, who’ll be involved and how long will it take. Presumably the lead mediator’s briefing did this so well that it seemed almost effortless, hardly worth mentioning except as an afterthought.
Ben Winter, P.A. focuses its practice in the areas of Social Security Disability and Workers Compensation in St Petersburg, Florida. For more information, go to our web site www.benwinterlaw.com or call (727) 822-0100.