Summary of the Mediation Process

The document below is for mediation practitioners and instructors in law schools, law firms, and elsewhere. I wrote it when I realized that we are missing easily available summaries of the mediation process. If you would like to request permission to use these materials, whether for trainings or for another purpose, please do not hesitate to reach out to me.


Those willing and able to access complete textbooks, such as Frenkel and Stark’s The Practice of Mediation or Christopher Moore's The Mediation Process, should go with those sources. Similarly, those with access to some of the fantastic mediation instructors that are out there should go with the process as they teach it — I am thinking of Professors Carol Liebman and Alexandra Carter at Columbia Law School, and of various trainers in New York’s Community Dispute Resolution Centers. 


Despite these sources, I often find myself in settings where time, expense, and schedule prevent all of these options, and we find that we need something more readily available.


I hope you will find this useful. It is very much a document in progress. I have already edited it in response to comments and questions, and I hope to have the opportunity to do so again in the future, as I hear your feedback. 

Preparing for Mediation


In the preparation stage, the mediator makes initial contact with the parties to broadly define the process and to establish what, if any, substantive information will be provided to the mediator in advance. Where there are co-mediators, the first preparatory step is to coordinate with each other. (We will discuss these preliminary matters at greater length in a subsequent blog.)


Not to be neglected is the mediator’s initial decision of where to hold the mediation session, where to seat the parties, and how to provide for their comfort. For example, it is the practice of the New York Peace Institute to, whenever possible, put out cups and a pitcher of water, paper and pens, tissues, and to make sure that the seating arrangements support neutrality and equal status for the parties.

 

Beginning the Mediation Session


A mediation session should commence with the mediator inviting the parties into the room at the same time and guiding them as to where to sit. At this stage, the mediator should take a moment to acknowledge each individual in the room with brief words of welcome, (a simple “hello” will do), eye contact, and perhaps a nod.


It is important not to ignore this stage. People come to mediation, and to all formalized conflict, with a wide variety of assumptions, fears, and sources of confidence, or lack thereof. Reaching a voluntary agreement requires feelings of agency, empowerment, and of being respected. A moment of acknowledgment goes a long way toward helping parties, and even counsel, to travel the emotional arc that resolution often requires.[1]


Next, the mediation continues with introductions, including respectful clarification of preferred names and forms of address. Generally, it is my practice to ask the parties if I may refer to them by first name, (a question that I pose after introducing myself as “Danny”), except in situations involving conflict within hierarchical organizations, such as police departments or hospitals.


Generally, the mediator should introduce him or herself as a mediator. Of course, the mediator will be many other things in his/her outside life, often including an accomplished lawyer. These other identities are fine to mention as long as you clarify that, in that room, in that process, you are there as a mediator, and as a mediator only.


Next, the mediator should make a brief opening statement explaining mediation, the role of the mediator, any ground rules, and confidentiality. 

 

Gathering Information and Identifying Issues


The gathering information stage begins with the participants (or their counsel) making opening statements, starting with the party bringing the claim, and with the mediator’s extended use of brief verbal and non-verbal prompts to encourage the participants to talk until they feel that they have provided all the information that is salient to them, and until they feel heard.


After both parties make their respective opening statements, the mediator summarizes what each said using active listening skills, some of which are presented elsewhere in the materials.


It is important that the mediator not begin to formulate a summary while the parties are speaking. “Mediators listen for interests, issues, and feelings, and not to prepare their response.”[2] To put it differently, listen mindfully. Once the parties are finished speaking, take several seconds to organize your thoughts, and only then begin to summarize interests, issues, and feelings. After you summarize, check-in with the speaker by asking, “did I get that right?[3]


New mediators often fear that they will not remember everything when they summarize or that they will fail to “get it right.” There is no need to worry. In fact, we engage in active listening and summarizing specifically because we know that we will get it wrong and because the only way to get it right is to run our summary by the speakers so that they can correct us. The vast majority of participants will respond to the question “did I get that right” with an addition, a correction, or a clarification. The mediator’s job is then to summarize again and to continue checking-in and summarizing until the speaker responds with an emphatic “yes, you got it” or the equivalent.


At this point, a mediator will begin to formulate what Liebman and Dubler term a mediator’s hypothesis regarding what the dispute might be about and what might resolve it.[4] Note that this statement is descriptive and not normative. It periodically becomes the fashion in mediation circles to claim that mediator neutrality requires refraining from forming an opinion. It is certainly the case that mediators should behave and proceed to the greatest extent possible as if they do not have an opinion, but it is also the case that mediators are human beings and that as human beings we all understand the world by developing theories about it that we test against the reality of  observation and experience. What Liebman and Dubler suggest is to put the mediator’s hypothesis in the service of the process, (rather than to use the hypothesis to direct the process). The mediator’s hypothesis should be kept in the back of the mediator’s mind and consistently tested against the parties’ statements and the unfolding circumstances of the mediation. By all means, hypothesize, but also be ready to continuously and iteratively revise your understanding.

Clarification of the Issues and Interests and Acknowledgement of Feelings


Parties experiencing conflict will present with positions, generalities, insults, and threats; Mediators, meanwhile, listen for feelings, issues, proposals, values, vision, and interests.[5] Parties may dwell on the past. It is the job of the mediator to orient the discussion toward the future. Conflict involves more noise than signal, and it is up to the mediator to sort through it all to identify the signals that further settlement. To do so, it is important for the mediator to limit herself to open-ended questions so as to not impose a direction on the parties. (After all, they have to voluntarily agree to the result.)


With open-ended questions as the scaffolding, the mediator provides a structure for exploring interests and discussing issues.
Interests are the underlying needs or motivations behind a position. Mediators focus on interests because interests allow more room for movement and creativity than do positions.


As Frenkel and Stark point out, mediation is a time-limited resource and parties want to see results.[6] It falls to the mediator to identify “mediable” issues, (that is, issues that can be mediated). To be mediable, an issue must have multiple potential outcomes to choose from, it must be possible to state it in concrete terms, and it must be within the control of the parties. Note what follows: disputed issues of fact and law are generally not mediable, as only a court can decide them.


Feelings are as important as interests and issues. Often, parties will need their feelings acknowledged before they can let go of a conflict and move to a problem-solving stance.


A mediator should also keep in mind that the simple passage of time can work wonders on a dispute. At the start of a mediation, parties are likely to experience significant psychological arousal. It often takes time to come down from that state, and people vary greatly in their ability to function productively while they are in it. For that reason, a mediation cannot be rushed. It is particularly worth lingering at the clarification stage to allow the participants time to process their emotions.[7]

Agreeing on an Agenda When You Don’t Agree on Anything Else


It is at this stage that mediators will set the agenda.  Now, here is the secret: When I say that we set the agenda, what I mean is that we engage in advanced summarizing, by listing (in organized, prioritized, detoxified form) the issues that the parties identified over the previous hour or more.
 

When I train professionals in mediation and negotiation, I usually get questions about how to set an agenda when, almost by definition, the parties are at the table with a very limited ability to agree on anything.  

Despite this agenda-setting problem, I find over and over again that parties are able to put aside their substantive differences in order to reach early agreement on an agenda to structure their discussions, thereby increasing their chance of reaching a deal.

The secret to agenda setting is that it should come after extended reciprocal active listening.  As a neutral, I encourage parties to make opening statements, and I prompt and re-prompt them to continue until they have told their story. I summarize (and in some cases even repeat parts) of what each party said to make sure each side hears the other, and that each side feels that the other heard them.

After several rounds of active listening and summarizing, my notes will look something like Figure A. Using that list, here is what goes on the agenda:

If one party wants to talk about something and the other party wants to talk about it too, then it goes on the agenda.

If one party wants to talk about an issue, and the other party has not mentioned it, then it goes on the agenda. 

Most importantly, if in the initial discussions it has come out that the parties agree on an issue, then I put it on the agenda and check it off or cross it out. It can provide a motivating and resolution-oriented frame when we place an issue that is already resolved on the agenda.

What happens if something is declared out of bounds?


What happens when one party wants to discuss Issue Z and the other party declares that they will not discuss Issue Z? I believe that the answer is surprisingly simple. More often than not, hidden behind the disagreement is an agreement: both parties agree that the question of whether or not to discuss Issue Z should be on the agenda.


The result is an agenda (see Figure B) that provides a structure for the balance of the mediation.

 

Problem Solving or Processing the Issues

With the agenda set, we start a series of mini-mediations by agenda item, sometimes discussing them discreetly, sometimes allowing them to become intertwined to promote trade-offs and log-rolling. 


The goal in this stage is to generate options, to brainstorm, to create a space for the parties to think deeply about what is to be gained from a negotiated agreement, how far they are willing to go to get there, and what their alternatives to a negotiated agreement may be.


If creative solutions are possible, this is often the moment when a mediation will most closely acquire the feeling of a (guided) integrative negotiation in the style of Getting to Yes[8] and the subsequent literature that builds on it.[9]

Dealing with Impasse


Mediators will find it useful to develop a familiarity with the literature surrounding possible barriers to settlement and best practices for interventions. While well beyond our scope, I will list some barriers, closely tracking Frenkel and Stark, (with a similar list also appearing in Robert Mnookin’s Beyond Winning)[10]:


Strategic Barriers: Threats, Resistance to Sharing Information, Positional Bargaining
Psychological Barriers: Inability to Let Go, Emotional Flooding and Contagion, Distorted Communication, Manichaean Framing, Rigidity
Cognitive Barriers: Zero-Sum Bias, Partisan Perception, Reactive Devaluation, Loss Aversion
Cultural Barriers
Structural Barriers: Intra-Party Disagreement, Missing Stakeholder, Agency Issues

Caucuses


Some mediators rarely meet with the parties separately in caucus. Others rush to separate the parties early in the mediation. Although there is a great variety of practice among mediators, the traditional view “advocates keeping participants together in face-to-face meetings for as long as can be productive.”[11]


Traditionally, mediation instruction has de-emphasized individual meetings with the mediator, known in the field as caucuses. Until recently, it was my opinion that the default model should continue to discourage the use of caucuses.


In conversation with practitioners and judges recently, I have realized that we may be able to better serve the mediation community by bringing the concept of caucuses into the fold from the beginning. Quite simply, caucuses are happening anyway. We might as well acknowledge that, and suggest some best practices.


Parties will often want to meet one-on-one with a mediator. Litigators love to meet one-on-one with a mediator. We should reassure them that they will have that opportunity and that they will have equal time.  However, we should also preserve that opportunity for later on in the process.
The reason is that a caucus and other advanced techniques such as mediator’s evaluations, are a one direction ratchet. You can always move toward more positional bargaining, separating the parties, less face-to-face communication if that is what the problem requires.


However, you cannot backtrack and reinstate the traditional facilitative model after it has gone in a different direction, both because the parties will be used to negotiating with the mediator and because you cannot unring the bell of evaluation. This is the reason that I side above with the authorities encouraging mediators to keep the parties together for as long as it is productive.


In getting to a caucus, you want to pay attention to stagecraft and choreography. You want to preserve your impartiality and your appearance of impartiality. This can be an uncomfortable moment for the parties, and your actions should reassure them.

  1. To begin, you generally should ask both parties to go out to whatever waiting area you have, and then invite the claimant in, announcing that you always start with the claimant and reassuring the other party that their caucus will follow.

  2. You should make sure they get roughly equal time, even if one party seems to have more to say. It might mean extending the conversation with the other party. Remember to avoid even the appearance of partisanship, even when meeting with one party, even when establishing rapport. It is detrimental to the process if they come out believing you are on their side or on the other’s side.

  3. You should also make sure they know the ground rules, which you should state both at the beginning and at the end of the caucus. Depending on the situation, I will either start out by reminding them that there is an extra layer of confidentiality within the caucus, and that I will not share anything they share with me with the other side without permission. Then I will repeat that at the end, or, if I think it is in the best interest of the parties and the process, I will end differently by saying, "Is there anything you shared in this caucus that you do not want me to share with the other side?"

Closing and Closure

If and when the issues on the agenda are all checked-off as resolved, an agreement may be in sight, but the mediator still has work to do. At this stage, it can be helpful for a mediator to ask questions aimed at reality-testing. Solutions should be developed to enough detail and with enough clarity to be able to confirm that minds have truly met.


Still, it is often not enough to close the session. For parties to voluntarily end a conflict, they will at times need to experience closure. This experience of closure can sometimes come from simply reaching a satisfactory outcome that addresses one’s needs. Sometimes, however, it will require traveling an emotional arc, words of respect, an experience of reciprocity, a sense of fairness, a feeling of being heard, receiving an apology, or even a restoration of a prior business or personal relationship.


Once reached, the mediator will confirm the agreement. Depending on the setting, the mediator will often assist in drafting a preliminary agreement with counsel for the review of the court. In a private or community setting, the agreement is often signed at the end of the session.
If there is no agreement, mediators will generally remind the parties of the progress they made, acknowledge and validate the parties’ efforts, and invite them to continue with future sessions.

 

End Notes

[1] For more on acknowledgment, see Jones and Brinkert, Conflict Coaching: Conflict Management Strategies and Skills for the Individual, 1st Edition.

[2] [3] The method described in this paragraph and this quote are from presentations developed by Carol B. Liebman.
[4] Dubler and Liebman, Bioethics Mediation: A Guide to Shaping Shared Solutions, Revised and Expanded Edition.
[5] From presentations by Carol B. Liebman.
[6] Material in this paragraph summarizes Frenkel and Stark, 227-8.
[7] Jill S. Tanz; Martha K. McClintock, The Physiologic Stress Response During Mediation, 32 Ohio St. J. on Disp. Resol. 29 (2017).
[8] Roger Fisher, William Ury & Bruce Patton, Getting to Yes (2011).
[9] Christopher W. Moore, The Mediation Process: Practical Strategies for Resolving Conflict, 4th Edition, 397.
[10] Douglas N. Frenkel and James H. Stark, The Practice of Mediation: A Video-integrated Text, 3rd Edition, 301-5; Robert H. Mnookin, Beyond Winning: Negotiating to Create Value in Deals and Disputes (2004).
[11] Frenkel and Stark, 175. For an alternative view, see James C. Freund's Anatomy of a Mediation, which emphasizes the value of a uniquely skilled negotiator serving as a mediator in a shuttle diplomacy style.

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