A flood of complaints, worries, demands, long stories, accusations, and explanations is pouring out. Where is a mediator to start?

Here’s a new guideline we’re using to help mediators facilitate the “Exchange” phase. It elicits the information participants will need for problem-solving, and also helps people have a deeper conversation that is less accusatory and more informative.

Complaints, accusations, blame, assertions, namecalling, “mind-reading” the other side…

Behavior examples:
Can you give us an example?
What happened?
Specifically what does she do that makes you say that?

Impact:
How does that affect you?
How did that change the situation?

Worries

Examples: What are you afraid they might do or say?
What happened before that makes you think they might do X?

Impact:
How would that potentially affect you?
How might that change the situation?

Then check out the assumptions behind their worry.

Positives

(Bring these up if the participants don’t.)

Example:
What has worked well in the past?
What aspects of the current situation would you like to see continue?
Impact: How did that help the situation?
What benefits does that bring?

Demands

Also positions, hopes, requests—any statement about what they want the future to look like.
Look for what information about their interests their demands/hopes reveal (rather than treating it as a proposal that’s on the table):

Examples: Skip asking for specifics–vivid descriptions of the future can solidify their positions. Request those descriptions during the “Options” phase of problem-solving. Instead ask about the past/present:
What problem are you trying to fix?
What happened before that you are trying to prevent from happening again?

Impact:
How would this proposed solution make your life (or work) better?

How firm is the mediator’s hand on the wheel? Here’s a new framework we’ve come up to help mediators understand the range of choices they have between directive and full consultation.

The paragraphs below are written in the context of mediator’s choices in structuring the discussion — is it time to ask another question, to move on to the next phase, to get more background information, to continue with the current discussion even if it is “off topic”?

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Although it may seem counter-intuitive, the directive style is fine when things are flowing smoothly. Participants can pay less attention to process choices when the conversation is working for them–the meta-level view can be a distraction, and usually the mediator’s directiveness is not experienced as controlling.

The more uncertainty and emotion, the more time the mediator needs to take to consult with the parties about next steps. Consultation slows things down, widens the conversation space. In thinking through process options together, mediators place themselves in the position of an advisor: listening and inquiring , until appropriate choices become clear.

More direct ←

Directive
Be directive if you are setting them up for the next structural task in the general process you have laid out for them earlier, and if they seem comfortable with your facilitation.

• The next step is coming up with a number of options.
  
• Harry, could you say more about that?
  
• Let’s take the next 10 minutes to wrap up; we’ll come back to the topic in our next session.

Be very careful your tone is low-key explanatory, as if you were telling a friend how to find a restaurant. It’s not about getting them to listen to you and follow your rules. It’s about you helping them get where they’ve said they want to go.


Checking-in
This directive approach adds a check-in to make sure participants are okay with the proposed direction. Use it when the parties seem stressed or uncomfortable and yet you’re fairly confident in what task should come next. If they hesitate, move to the next more consultative option.

• It probably makes sense to start with topic Z, because you all seem to have more energy around that topic. Is that okay with you?
  
• Marian has made an offer. I think you’re not quite ready to talk about solutions yet. Can we note it and come back to it?

More consultative →

Choices with a recommendation.
When more than one direction might work, offer the parties real choices (i.e. you’re okay with any of them). Limit choices to 2 or 3, and then indicate which one you prefer.

• You can continue this conversation weighing the merits of Joe’s idea; however, I’m not sure we are all clear about the details of what he’s proposing. I suggest we take a few minutes just for clarifying questions. Is that all right with you or would you rather keep going on this current thread?

Why give your recommendation along with the choices—doesn’t that privilege the mediator? Remember YOU are in charge of the process. You also have more knowledge about mediation process and a more detached perspective. Parties who are already in adversarial mode can easily fall into adversarial arguments about process, especially in the early part of the mediation, rather than talking about what is on their mind and heart. If you then intervene and make a decision, you have taken sides. Better to have them disagree with your preference instead of with each other!


Full consultation
When you are unclear how to proceed, it means you need more information about any or all of these:

People: First, check in with how they are doing in terms of emotions, concentration, energy level. Do you or they need a break? Use the time to clear your head (one mediator goes for a walk around the block!), to talk with your co-mediator, and, if useful, to briefly check-in individually with each party.

Process: Find out how are they experiencing the communication between them. Is there anything that would help make it easier for them to speak, and to listen? (Suggest a few options for them to consider.)

Problem: Often mediators and the parties find their initial view of the situation changing: “facts” realign, truer interests emerge, new hot spots flare, dilemmas crystalize. Discuss with the parties how they are seeing the situation now: Is their goal for the mediation changing, or their sense of priorities? Is there other information they need to gather? A point of agreement they need to revisit? Do others not at the table need to be brought in or consulted?

• Here’s what I see happening. I know you want to settle this matter, today if possible. Let’s talk about what your priorities for the remaining time are. What do you want to accomplish here?
• I’m concerned that we keep returning to this same topic, even though you all seem to be in agreement about what to do. Help me understand what worries you about that agreement, what about the topic still needs attention? Is there something else that needs to be resolved first?

So what to call the skill set that in the previous Handbook was CONTROLLING THE PROCESS? Subheads include skills and decisions such as: directing conversation, summarizing, restating, protecting, intervening, when to quit. Each of the following verbs contain a fistful of assumptions about what actually happens or “should” happen in a mediation.

Controlling the process — the mediators are in charge, they structure the conversation, decide what content and behavior are acceptable, prevent hostility from getting out of hand.

Directing the process — similar goals, with a gentler hand, and with the implicit or explicit permission of the parties.

Managing the process — the mediators structure and facilitate, while consulting and persuading the parties to participate effectively. Implies that the process is never complete or perfect, requiring attention and tweaking as discussions progress.

Overseeing the process — the mediators and the participants are collectively creating the process, with the mediators in the role of consultant, designer, advisor, facilitator, and/or teacher.

Facilitating the process — the mediator is charged with making the process easier, making it work. It leaves open the question of whether the participants or the mediators design the process and make process decisions along the way. [I'm tilting towards using this one]

Guiding the process — the mediator is piloting the process, but not necessarily actively facilitating it. They may be backstage advising or coaching.

Advising the process, process consultants — the participants are in charge, and ask the mediators to assist within a given set of criteria.

Thoughts appreciated.