Mediation is about resolving disputes in a fair, cooperative, and sustainable manner. But a mediator’s job is not to resolve the parties’ dispute for them. Rather, a mediator’s job is to clarify issues, facilitate understanding of opposing positions, and educate the parties about the alternatives to a negotiated settlement so they can resolve their dispute on terms that work for them.
As complicated as this may seem, it is actually quite simple. There are really only two things a mediator must do to help successfully resolve a dispute.
Close the Information Gap
The first step is to make sure the disputing parties are factually on the same page.
What may start as a simple misunderstanding often grows into a full-blown and heated argument because the parties do not even agree on the most important facts and bits of information at the root of the issue. Once the initial misunderstanding occurs, the emotions take over (which we’ll discuss in a moment) and the dispute grows from there. If it is a litigated dispute, the metastasis is even worse. Positions become entrenched and neither side stops to say, ‘Hey! Let’s look at what actually happened and make sure we’re on the same page about that before we continue arguing.’ Each party is far too busy defending its version of events to take a step back and start from the beginning.
A good mediator, then, will help close that gap. I will always ask each party to provide a detailed factual summary so I can compare them and see if the parties can at least agree on the facts. Until they do that, it is fruitless to try to help them find a mutually acceptable resolution.
The results of the fact comparison are often surprising.
Often, opposing parties discover they are looking at completely different ‘facts’ or had different understandings about a core piece of information. Only after the parties are all making arguments based on the same set of facts can the hard work of crafting a solution finally begin.
For example, in a recent wage and hour putative class action with PAGA claims alleged, the employer took the position that no employee had complained about the alleged violation. On this basis, the employer was arguing strenuously that the discretionary penalty that might be awarded would be zero or very low because the plaintiffs would be unable to demonstrate a “willful” violation. But this was factually inaccurate because, in fact, the named plaintiff had evidence that she had made previous complaints. For some reason, this evidence had not surfaced prior to the mediation. In fact, it wasn’t until fairly late in the day that I asked the question that caused the plaintiff’s side to reveal this evidence to me. Although the case did not settle during that day, the employer at least came away with a better understanding of why plaintiffs’ counsel had continued throughout the mediation to insist on a payment far in excess of what the employer thought was reasonable.
Address the Emotions
When a conflict or disagreement arises, even a small one, human beings become defensive and, often, irrational. We immediately protect our egos and sense of righteousness by building up walls. Logic is cast aside, and emotions take over. Emotions like anger, resentment, guilt, insecurity, and fear are most common.
Until the parties can eliminate, or at least minimize, the power of these emotions, rational arguments are useless. Parties are prone to exaggerating, bluffing, stalling, threatening, stonewalling, avoiding, and any number of other ineffective tactics based on emotion, not reason. Although this reaction is understandable because it is human nature, it also prevents resolution of even seemingly small disputes.
The mediator must address these emotions before any resolution is possible. Dealing with emotions does not mean ignoring them, dismissing them, or minimizing them. To the contrary, a mediator must help the disputing parties work through the emotions and recognize the consequences of making decisions based on emotions instead of reason.
A key to helping parties minimize the role of their emotions in decision-making is establishing trust. If the parties are not comfortable, they will continue to build walls and use their emotions as a guard. Once the parties trust that the mediator is truly neutral and truly interested in nothing but facilitating a resolution, the parties are generally able to listen to rational advice. And, if two parties are addressing the same set of facts and applying rational thought, the dispute almost resolves itself. To establish this trust, it is critical that the mediator listen to and discuss the parties’ feelings about the dispute so they feel their reaction is acknowledged and validated. The opportunity for each party to reveal his or her emotions to a sympathetic, neutral ear is an invaluable part of the mediation process.
In a recent case, the plaintiff sued the defendant for a relatively small sum of money. The parties had been friends for nearly 40 years and the plaintiff felt a sense of betrayal. Had the case been a simple business dispute involving this amount of money, it is likely the matter might never have been litigated. It finally settled when the plaintiff was able to cast aside his feelings of being stiffed by a life-long friend and view the case as just a dispute over whether he was owed money and, if so, how much. As with most cases, when parties make decisions based on facts and sound arguments instead of feelings, the dispute resolves.
Over my career, I have developed a knack for closing the information gap by asking the right questions and insisting on answers backed up with evidence. I have also been lauded for an ability to relate to people on all different levels and thereby earn their trust.
I welcome the opportunity to help people resolve disputes of any kind whether a litigated case or any matter where conflict resolution assistance would be beneficial to those whose dispute is interfering with something important to the parties.
Please feel free to contact me through the website or by telephone if I can be of assistance.