The opening statement is YOUR moment, uninterrupted and undivided. It sets the temperature, proclaims your control over the process, establishes neutrality, develop rapport and gain confidence and trust of the parties. That’s a titanic task for you to be done, effectively! Be creative in your ways of making an opening statement. Analogies work brilliantly. For instance, trying to make the pie larger – “Imagine a jar of milk in front of you as the problem. Let’s add some sugar and make it sweet for the both of you to take back home.”
Your conduct is being scrutinized by the judges because a mediator can also communicate through body language. For instance, leaning gently towards the party reflects attentive listening. By turning your chair and body towards a party, you reinforce the commitment to give the party your undivided attention. [As a practical tip for your preparations, record your mock sessions. You may find a ton of things to work on].
Don’t lose your calm and don’t sweat ‘imagining’ things going bad. Keep in mind that ‘mediation isn’t about making it all better nor do you have the burden of bringing the parties to a settlement’.
Parties who are capable of raising a dispute are equally capable of resolving it. Your job is to drive the process effectively. Be “the guy who does his job”!
Mediation isn’t just one letter away from ‘meditation’ but also, ‘medication’! The process is a continuous exchange between: Mediating (the problem) ó Meditating (on the options) ó Medicating (the problem). Take charge of the process and be flexible in moving back and forth. Most importantly, establish clarity in the process.
Educate yourself with the conflict. You must conduct your fact-finding effort with a purpose of: (a) understanding how parties see their situation (b) understanding what concerns, substantive and emotional, must be addressed in order for parties to feel confident that their dispute is moving towards resolution (c) And lastly, getting them to describe those details repeatedly and precisely so that each one knows what they have to work with.
There are techniques you could use to demonstrate that you’re a patient listener and that you’re understanding. For instance,
Get this: A Negotiated Contract -> Leads the parties to a Dispute -> Again, bringing the parties back to Negotiations! So parties try to negotiate on a dispute that happens to emerge out of a negotiated contract! What I’m basically trying to say is that the past may have a lot of answers. You may remind the parties about their negotiated contract and encourage them to time travel into the time when things were great making each one understand the other’s perspective in the passage of time.
When you find parties anchored to their positions, it may be because they haven’t made the effort of thinking out of the box. The answer is a simple truth- ‘the problems that exist today cannot be solved by the same thinking that created them’. Shake ‘em up!
Both the timing of a caucus session and the choice of whom to meet with first are important decisions! This decision would depend upon the purpose of calling it which is captured by the acronym E. S. C. A. P. E – [E] Explore settlement options, [S] Signal warning signs, [C] Confirm movement, [A] Attack a recalcitrant party, for e.g., by showing the big picture: the costs of not settling, [P] Pause and [E] Evaluate.
This is ‘the’ mediator’s modus operandi – B. A. D. G. E. R. – [B] Begin the discussion, [A] Accumulate information, [D] Develop the agenda and discussion strategies, [G] Generate movement, [E] Escape to separate sessions, and [R] Resolve the dispute. This is your roadmap!