In my journey, from mediator to mediation coach, I have become fascinated by how magical mediation is in helping people collaborate to develop a mutually-satisfactory resolution to a conflict. The mediation process can inspire a person to unlock previously untapped sources of imagination, flexibility, productivity, and courage. Encouraging words, poignant questions, validation, acknowledgment of common interests, and reframing what parties say can miraculously quench and neutralize a long-lasting and heated conflict. A mediator does not have supernatural powers, but the transformative power of mediation is as mystifying as magic.
Many people pursue mediation when negative feelings such as bitterness, frustration, anger, or disgruntlement prevent productive communication. When parties effectively engage in mediation, mediators can help them recognize that conflict can serve as a catalyst that provides an opportunity for creative problem-solving. Transformation doesn’t happen immediately, and quite often it takes a combination of patience, perseverance and time. The magical outcomes produced by mediation can surprise even the greatest skeptics, as well as the most seasoned mediators.
Let me dive deeper into how mediation can help parties reach their full potential. By centering on core beliefs of our practice, shaped by model standards of conduct, good mediators direct their energy on strategies that work best to maneuver through difficult conversations. To be effective, mediators also work with whatever attitudes the parties bring to the mediation session, and align with new techniques that positively shape their thoughts, actions, and feelings inside the mediation room. Throughout the entire process of mediation, the mediator must remain aware of the spoken and unspoken dynamics. With practice, mediators become adaptable to the nuances of each situation. A good mediator should be able to feel the rhythms of the unfolding drama and empower the participants to address the problem.
The Conflict Rabbit Hole
Much like Alice’s adventures in Wonderland, it is not uncommon for the emotions fueling a conflict to cause parties to feel as though they’ve crawled down a rabbit hole of endless fighting they cannot escape. Tensions overshadow goals the parties hope to achieve through mediation. Hearing the other party’s perspective can be disorienting, surprising and dizzying for the parties, but a mediator finds ways to validate each party, which can help them feel grounded and centered. With greater clarity and calm, a mediator can eventually elicit creative options and highlight pathways toward a brighter future.
Before the parties can explore innovative ways to navigate the conflict, a skilled mediator will invite the parties, through open-ended questions, to explain their respective versions of the conflict. Time and again, I have noticed that by the time parties begin mediation, the facts of the conflict have been reshaped, reimagined and reinterpreted by the parties to further entrench their own intractable positions. To navigate this potential misalignment, it can be productive to have the parties start by understanding how each person is experiencing and processing the conflict. Each person’s narrative about the conflict informs how they engage with it and with the other party. While both sides offer their side of the story, mediators will reflect, reframe or paraphrase what they are saying by using clarifying questions to ensure that all people in the room have an accurate understanding of the perspectives of the involved parties. While the goal of mediation is to reshape a better future, this understanding of how they got here can be fundamental to the exploration of a pathway out of the conflict rabbit hole.
MEDIATORS’ BAG OF TRICKS
A mediator does not magically pull a solution out of a hat, but like a magician, mediators have many wondrous techniques at their disposal. One mystifying aspect of the mediation process is that it can illuminate issues that hovered below the surface of the proverbial conflict iceberg.
Once the parties have heard one another’s perspectives, the mediator will ask open-ended questions that encourage the parties to articulate their interests and values. When listening, the work of a mediator is to be keenly aware of the interactions, verbal and nonverbal, to identify the underlying interests of their respective positions. Open-ended questions, once again, encourage the parties to articulate their interests and values and begin negotiating a resolution. The mediator must listen closely to identify and articulate the similarities and differences in the needs of the parties.
It is also crucial that the mediator parse through the emotions and elevate the primary concerns and root issues that fuel the conflict. Parties often enter mediation with a sense that there is one central issue or presenting problem. However, through the process of mediation, it is common for the questions asked by the mediator to reveal layers of complexity that drive the emotions in the conflict. Quite often, there are multiple intertwined and separate issues. A well-trained mediator will use a variety of techniques to compassionately elicit, prioritize, navigate and disentangle the issues. Throughout this process, a skilled mediator will actively listen to accurately validate and acknowledge all needs and concerns elevated by the parties. When parties feel heard and validated, tensions decrease and they are able to focus on their interests and goals with more clarity.
As the perspectives and primary issues are shared, the mediator can help the parties explore creative opportunities to resolve the conflict. To encourage parties to discover untapped sources of imagination, flexibility, productivity, and courage, the mediator can prompt each party to express what they would like to accomplish from the mediation. Discussing desired outcomes can help initiate the transition to the brainstorming and negotiation stage.
Open-ended questions that can assist in provoking creative problem-solving include:
What would your life be like if this conflict went away?
How would you like to approach this issue?
What would an ideal solution look like to you?
Based on what you have heard them say, what solutions do you believe are possible?
What do you think a good agreement would look like to her?
How has your perspective shifted, after listening to his concerns?
What are you willing and not willing to give up to get what you want?
What solution could you live with?
magic wands of mediation
Before the parties are ready to begin negotiating, skilled mediators will pull from a variety of techniques found in their bag of tricks — including offering a “magic wand” (keep reading) — to illuminate the way to a more collaborative atmosphere.
When the mediation process transitions to the collaborative problem-solving and negotiation phases, the mediator may invite the parties to start dialoguing directly with each other. The mediator may do this by asking each party how they feel about what the other party or parties would like to accomplish from the mediation. This can be very illuminating for everyone in the mediation session. While it is uncommon for the parties to agree immediately to a resolution, quite often they will discover that what each party hopes to achieve during the mediation surprisingly aligns with one another.
Here are a few techniques I’ve seen IMA mediators use very effectively to help the parties transition toward negotiation:
Brainstorming
The mediator can have the parties spend five minutes exploring ways to solve the issue. To prompt the parties, the mediator may ask what an ideal solution would be to the problem in focus. The parties should be encouraged to approach this exercise with the perspective that no idea is a bad idea. The goal is quantity versus quality of answers. As the parties come up with suggestions, they should record each one on separate pieces of paper, so the process is driven by the parties. In a virtual setting, the mediator can use a chat feature or a virtual whiteboard to take note of the ideas or navigate to the screen sharing function to share a document that they use during the brainstorming session. After five minutes, the mediator will ask the parties to reflect on the ideas generated. They can organize them into categories or themes. They may decide which ones are doable, non-negotiable, impossible or the like. Sometimes the craziest seeming ideas can be combined into something the parties can work with, or they spark new ideas they can build upon to work toward a mutual agreement.
Private caucus
A skilled mediator may also find it useful to meet privately with each party, which mediators call a caucus. In caucus, each party can help the mediator (and themselves) better understand how they would like to address the issue or their opinions on a suggested solution.
It may seem counterintuitive to divide parties in order to inspire collaboration, but during a caucus, individuals often feel they can be more transparent about what they want and need from the other party. Sometimes one of the parties requests a caucus because they want to bounce an idea off the mediator without losing face or they have a hidden issue they don’t wish to reveal to the other party.
Skilled mediators see caucusing as an aid in mediation, but it should also be used cautiously and mindfully. The mediator may approach private interactions as an opportunity to coach the individual on how they may courageously make these suggestions to the other party or how to work around them. In a caucus, mediator standards of conduct should still be followed, to preserve the integrity of the process and the parties’ confidence in the mediator.
Change of scenery
The mediator may also find it valuable to call a break before the problem-solving phase begins. Encouraging the parties to get up from their seats and leave the mediation room, whether virtual or in-person can help the parties distance themselves from the emotions of the conflict and recenter to productively engage with the problem-solving phase.
Shift in focus
Quite often, the parties are engaged in the mediation but at the same time struggling to see eye-to-eye, a mediator can illuminate a new direction by briefly changing the direction of the conversation.
One example we like to use at IMA is the water bottle exercise. The mediator asks the parties to take a break from the discussion for a minute and places a water bottle in the middle of the table (or screen, if the mediation is virtual). The mediator then asks the parties to take two minutes to describe what they see. Inevitably, their descriptions will be far apart. For example, one party will describe the bottle itself and the other will describe the contents. Quite often, they will have a moment of, “Aha!” The mediator or one of the parties will state the obvious, “We’re looking at the same thing, from completely different perspectives.”
Instead of focusing on who is right and who is wrong, they may now begin to proceed differently, recognizing they may never see it the same way. Our mediators like to remind the parties that mediation is about carving out a better future they both can live with, regardless of how they perceived the past.
Seat-swapping
Mediators may ask each party to imagine themselves in the other party’s position. Sometimes, moving physically into the other party’s chair can lighten the air and provide a new perspective of even the most entrenched positions. A mediator with good intuition will know whether or not this will work, because it can fail miserably if the parties are not ready to acknowledge their opponents’ interests.
Follow-up sessions
If schedules permit, or if the session is coming to a close but the parties are still engaged in working toward a solution, the mediator may invite the parties to take a break for the day and return for a later session. The mediator should summarize any and all agreements already made, frame them as victories and ask the parties to consider goals for the follow-up session or sessions. This can not only help relieve tension and pressure, but also provide a sense of hope and commitment toward mutual progress.
Offer a magic wand
As mentioned in this article, sometimes inviting the parties to envision what life would be like when the conflict went away can be enlightening.
A mediator can open this possibility by asking the parties to imagine what they would do with a magic wand to resolve the conflict. Some of our mediators even carry plastic magic wands with them as a fun prop to reinforce the exercise.
Many times, not only does this lighten the tension in the room, but it also will often spark creativity, collaboration and empathy.
Conflict illusionS
The negotiation process requires the parties to consider the various options and determine what is possible given their interests and needs. The mediator’s role during this stage is to ask questions that allow the parties to explain what they are willing to compromise on and how they might combine multiple suggestions to create a satisfying outcome.
It can be useful to ask questions like:
Given the ideas discussed so far, what may you give up to get what you want?
What are you not willing to give up?
What do you like or dislike about the suggested ideas?
If you were in his shoes, what would be the most reasonable idea?
What solution do you think she seeks from you?
What happens if you don’t reach a resolution?
As suggested in that last bullet point, negotiations can also benefit from discussion of the BATNA or the Best Alternative to a Negotiated Agreement. The BATNA is what will happen if the parties do not come up with a resolution during the mediation. Quite often, the parties have not realistically thought about what happens if they don’t reach an agreement, and that revelation can be both painful and enlightening. A skilled mediator can help the parties define the BATNA, or the WATNA – the worst alternative to a negotiated agreement – which can also motivate the parties to engage in problem-solving.
One thing I have observed over and over, like a magic act, by the time the parties have reached the mediation table, much of their conflict is based on their own illusions. Each side has imagined the worst in their opponent, far worse than the reality of what they stand to gain by working together toward something they can live with. Often, each party also assumes their opponent is judging them far worse than reality, causing all parties to arrive with their defenses up.
The real “magic” of mediation is the parties’ own ability to let go of those tightly held beliefs about the other party in order to miraculously and transformatively co-create a better future. More than magic, it’s a fact: about 80% of all mediated cases reach a resolution.
MEDIATOR’S prime directive
Many mediators are natural problem solvers who are trained to resist the urge to provide suggestions on how the conflict can be solved. Throughout the entire mediation process, especially during the negotiation stages, every skilled mediator knows to exercise restraint from proposing solutions. If a mediator interferes with the resolution, they are stripping the parties of their agency and autonomy in the mediation process. Ultimately, the more stake the parties have in their own conception of a resolution, the more likely they are to own, adhere to and implement the resolution.
As we frequently remind our mediators, much like the crew of Star Trek, this is essentially the prime directive of the Model Standards of Conduct for Mediators: to preserve the parties’ right to self-determination.
During the negotiations, even if the parties claim they are at an impasse, at IMA, we believe the mediator must be the last person to leave the table. Parties may lose momentum and hope throughout the process, but the mediator’s duty is to continue encouraging them to engage in the discussion. If the mediator gives up before all possibilities have been explored, the parties will likely give up and leave unsatisfied.
A skilled mediator is equipped to elicit and inspire innovation throughout the process, enabling parties to reach elegant and wise resolutions in which they have confidence. Much like a magician’s bag of tricks, mediators have countless techniques and tools available in their toolbox. The ability of a mediator to adapt to the unique needs of each situation is crucial to allowing parties to realize their full potential. It is astonishing to experience parties’ willingness to unlock their imagination, flexibility, productivity, and courage.
The magic happens when mediators tap into their own creativity, combined with the transformative power of the mediation process, to illuminate a pathway toward the parties’ wisest resolutions.
Mediation truly is as mystifying as magic, wouldn’t you agree?
