Recently, I took part in a mediation between two senior members of an organisation. Despite one working for the other, neither of them had spoken to each other for several months. Having met both parties individually, my co-mediator and I were concerned about the possibility that a joint meeting between them, might make things worse. Each individual was citing examples of where the unwritten contract between them had been ridden over roughshod. There didn’t seem to be a genuine willingness from either side to enter into the process with an open mind, the only common ground seemed to be their desire to ignore it and hope it would go away.
How did I find myself sitting under unforgiving fluorescent lights in a nondescript municipal office, worrying about the imminent arrival of these two unhappy characters?
In 2011 I decided that taking part in some kind of voluntary activity might make me feel good. Having spent 25 years working in sales and marketing and then property, I reckoned I was a reasonable negotiator and doing deals was something I enjoyed. I also seemed to have inherited from my father an unhelpful propensity to want to see fair play. (Reading Don Quixote as a child, I pictured the eponymous hero with a combover, smoking Piccadilly No1). I had heard about mediation and took a course run by a local charity that addresses neighbour disputes and learnt (among other things) that community mediation isn’t about negotiation. It is about helping the parties involved to find their own solutions, it is about being impartial. Some years later, I took a civil and commercial mediation course. This, I learnt, is a more directive process. It seemed I had come full circle, I had found mediation that was about negotiation, where I was expected to offer suggestions that may help form an agreement. At first this seemed strange, did this interfere with what I felt was at the crux of all the mediations I had so far taken part in, impartiality? Could I remain neutral whilst steering the parties towards common ground?
Impartiality is a very rare commodity indeed, hardly at all if ever, is it found in the day to day life of anyone. If I complain to a friend about how awkward someone is to deal with, they will usually support my views, reinforce my position, perhaps leaving me feeling even more indignant about the situation in which I have found myself. In the legal process, a lawyer does the same, takes a position and invests in reinforcing it, bolstering it so that it triumphs or is razed to the ground by the (trial) process. When the problem is given to a judge or arbitrator to settle, he or she will be expected to be impartial, to act fairly, but will in the end pronounce one party the winner and the other the loser.
Mediation works because of impartiality (and it will fail if it is not upheld).
But it goes beyond the idea that the facilitator is neutral and fair, not taking one side over another, in mediation extends to helping the parties to take responsibility for the dispute, which will in turn empower them to negotiate their own agreement. A judge will not do this. Whilst a lawyer will fight your position, an impartial mediator will act as an agent of reality and will encourage the parties to move away from their entrenched positions, to look at things from the point of principle instead to where they become willing to compromise. Back in that brightly lit room with my co-mediator, the first 45 minutes of the joint meeting were stressful, both parties appealed to us on a number of occasions, to confirm that their version of events was the valid one.
Questioning eventually revealed that there were misunderstandings on both sides, and so discoveries were also made by both sides. This was where opportunity lay. We encouraged the participants to explore these issues, they started to realise that the basis of their dispute had been misunderstanding. It doesn’t happen often but in this case, after much angst, the parties got out of their seats and embraced. In our debrief, we, the mediators, tried to identify what significant actions we had taken that had resulted in this shift. We had to agree that we had done nothing special, it had been about sticking to the process and remaining impartial.
