‘But, the Mediator is Taking Their Side!’ & Other Misconceptions
Credit: @markuswinkler
In my profession, I often meet people at a point in their life when they are under a lot of stress. While the stress can come off as general, the alleviated stress is typically due to a particular ongoing issue. Because of this, as the mediator, I’m often relaying things from one party to another as to avoid confrontation. Occasionally, because I’m relaying the position of the opposing side, parties will become convinced that I am actually relaying my own opinions. However, this is not the case.
In situations where parties aren’t in a joint session face-to-face, mediators are generally going back-and-forth between the parties relaying positions, offers, counteroffers, etc. This is called a “caucus.” It allows the mediator to have private conversations with each side in order for them to speak candidly about their interests. The mediator can also help the parties come to a better understanding of what options they might have based on what is coming from the other party and help determine how the parties will respond in a manner that’s most likely to bring them closer to resolution.
The mediator then goes to the opposing party to relay any points the other party wants to make, along with any offers, or a counter offer. This is usually the point where the mediator could have some “reality check” moments with a party. While this might look like the mediator is playing devil’s advocate, it’s necessary to acknowledge some reasonable points the other side has made that could potentially become relevant. Mediators can use different approaches, but my personal method during these times is to focus on risk management (particularly litigation or risk thereof) and problem solving. I often have to either use points the other party has given me permission to raise in order to help them understand that there might be a flaw in what they’re saying, or with the value they’ve assigned a particular thing, etc.
Unfortunately, it is difficult for many to see objective problems within their position when they’re in the situation themselves. We are all vulnerable to this, but it doesn’t mean a different perspective is well received. People are often very emotional and stressed leading up to mediation, so it’s easy for them to view the conversation skeptically, although it’s intended to help them be more aware. In order to help the parties move forward, I have to have difficult conversations with everyone about the potential alternatives in case mediation is unable to resolve their issues.
As a mediator, I am not just a person shuttling offers back and forth. While that can certainly become part of it, it’s actually much more complex than that, and can change depending on the situation. Being a mediator is creating an environment where parties within a dispute can communicate with each other and share ideas that they might not agree with, but can be presented in a manner that the other side is still willing to engage and work toward a resolution. It is often a VERY delicate balance. There are times I have to make a party aware that what they plan to request could backfire in a way they may regret. Parties can become alienated towards one another and the process if one party believes the other has been consistently unreasonable. As part of this, I have to be very aware of factors such as ethnicity, culture, custom, religion, personality and history between the parties, among others.
Mediation participants can also become suspicious if they feel like the mediator is spending more time speaking to the other party privately. This just means the mediator is hard at work! Mediators are often dealing with very different personalities, some of which take a little longer to understand and evaluate options for. There may also be times that the other party is giving the mediator new information and it extends the discussion. Just know that the mediator will spend their time wherever they think it will help move the parties forward towards a resolution. They will do this until that happens, or until they feel the parties ultimately cannot come to an agreement, at least at the present moment, and wrap up that session. The fact that they have spent much more time with another party is probably not a bad thing.
Try to keep in mind that the mediator doesn’t want to help you or the other party separately. Their interest is helping you move forward past the issues collectively in the most effective way given the circumstances.
Other concerns I have received before have regarded payment. There are many situations in which one party pays for the cost of mediation. This is usually because of the parties’ relative ability to pay, or if one party is hoping the other will be more willing to try mediation if they cover the cost. However, the parties can ultimately choose how they would like to divide fees if they prefer to share cost. It is very common in the industry and isn’t generally something that should be of concern. The mediator is neutral and is not making a decision on the “case”, nor are they trying to help give a party legal advice to give them an edge over the other party. As to the parties, there cannot be an expectation that the mediator will behave in a manner that favors them exclusively or would otherwise be considered unethical with regards to their role - regardless of who paid the fees.