Thursday, April 30, 2009

How we do our work as mediators

I recently came across an interview with Ron Hawkins who is the National Ombuds for McDonald’s USA working with both franchise and employee issues. He was asked about his work and explained that resolving conflicts was primarily based on trust – “You build credibility by building trust, and you build trust by doing the right thing. It’s not who’s right, it’s what’s right. And it’s not what’s done, but how it’s done.”

This is a great reminder to us as mediators – it’s what we do and how we do it that matters. In fact, the “how we do it” is probably as much or more important than what we do.

Our skill set is about process both in terms of how we do “things” and the “things” we ask of mediation participants. Do we change how we do “things” as the mediation progresses? I’m sure we do; however, within such differences let me remind you that how you do things at the beginning of your mediation and how you do things at the end should be consistent and framed by the tenets of mediation as you subscribe. For me these include, among others, being impartial, neutral, an advocate for the process, and seeking participant self determination. Even as I may connect more with one or more participants I must still maintain a level of professionalism that allows me to hold the big mediation picture in place and stay in my mediator role.

So, next mediation, reflect on how you do “things” at the start and at the finish.

Thursday, April 16, 2009

Mediator Power

Since the first of the year, the US has begun to reshape its foreign policy approach and commentators have talked about using “soft power” instead of “hard power” to achieve policy goals. This got me to thinking about mediator power.

I came up with the following lists to divide mediator power into hard and soft power.


Direct process

Evaluative focus

Challenge participant views


Objectify decision making

Solely a business decision

Authority over process

No food

Separate participants


Follow process
Relational focus
Support multiple perspectives

Objectify and subjectify decision making

Business and personal decision

hare process authority
Work with participants together and separately

This is by no means meant to be an exhaustive list and I’m not sure the respective powers are so clearly separated; rather, they may be on a continuum. With this in mind, let’s consider the first, process leading versus following, as an example.

On one end of the spectrum you have the mediator who leads the process and makes all the process decisions. These will generally include - Who should talk first, when to meet in private caucus, when to stop the mediation, etc. This mediator is firmly in control of the mediation process.

On the other end, is the mediator who follows, asking “Who would like to start?” or “Do you need a break or a private meeting at this time?” This mediator does not control the process.

In reality I suspect that most mediators move between hard and soft power depending on their mediation framework and the needs of the participants. I certainly find value in following the lead of participants and I often present process ideas to move discussions. I suppose I take the “both – and” approach with hard and soft power. Perhaps you do too.

Monday, April 6, 2009

Could - - Not Should

I was in a mediation recently that provided a clear example of the difference between a mediator giving an opinion of case value versus a mediator offering an opinion about where the case could settle. I believe this is an important distinction of both form and substance.

Here's what happened. I was in private caucus with defendant and was asked by one of the participants “Where do you think the case should settle?" This question came after several hours of discussion and several offers and counter offers. I responded back to the questioner that I could answer the question if I could change their word "should" to “could.” Using “could” allows me to offer thoughts about a settlement range based on the offers and counter offers and both general and private discussions with the parties. In part, this question had been asked because the numbers had started quite far apart and the questioner was trying to discern whether there was value in continuing the discussion. I believe these are important instances where the mediator can enhance the negotiation by providing insight without stepping outside the neutral role of mediator.

Usually I do this in the form of a review of where the numbers started, a discussion of what the numbers themselves suggest and then I usually offer a range and probabilities concerning the likelihood of settlement at any particular number within that range. I also couch the range and the specific probability of specific numbers as estimates and even sometimes as speculation. Since I do not ask people where they are headed (I want them to stay flexible) I often don't know the answer. At the same time, I’ve discovered that by paying close attention I usually end up with a pretty good idea of the settlement range. I offer these thoughts to encourage continued discussion while on the face of it, the numbers may suggest otherwise.

This approach is in contrast to the mediator deciding or valuing the case and telling participants what they (the mediator) believes is the value of the claim. While mediators may indeed have great experience and may be able to offer opinions about value, I believe any time the mediator offers a value opinion, the mediator has shifted from a place of neutrality to a place of taking sides. And once you take a side as mediator, you lose the ability to be neutral and you lose the ability to effectively do your job. So, mediators, don't offer value opinions. Offer “where the case could settle” opinions!