The techniques discussed here rely on the participants’ trust in the mediator, which must be established fairly quickly in mediation. If the parties and counsel do not trust the mediator, they will not follow her suggestions regarding process, concessions, bargaining, communication, etc.
Generate options and resources
Mediators ought to help the parties focus on the future as much as possible – who does what, where and by when – in clear, simple terms. Employers know that money and other resources will resolve disputes; their challenge is to strike the right balance between paying just enough to make resolution more attractive than adjudication (the same challenge exists for any defendant). Non-economic terms might be of interest to the claimant, such as neutral references, reassignment or categorization of settlement money as W2 or 1099 income. Claimants can save face when they realize (1) they will never “face” their employer again, (2) they “stood up for themselves” by initiating a claim and (3) the “sure thing” of a settlement amount is more valuable than a long-haul investment of time and money into litigation with no assurance of reward.
Provide a new perspective on the parties’ legal positions
Mediators must help claimants distinguish the difference between their personal experience of the conflict and the anticipated value of a legal case. Proving an employment case can be tricky, with shifting burdens of proof. No one can predict how jurors will negotiate among themselves behind closed doors and no one knows how judges will rule on controverted, key evidentiary issues. “Truth” in the real world is very different from truth in court. Mismatching the internal emotional state of the parties with the legal or factual state of their case can create dissonance or a new perspective sufficient to settle rather than litigate.
Motivating parties to reflect and gain new insights on intense conflict is easier said than done. Parties need to feel emotionally safe enough to be vulnerable and admit how they may have contributed to the conflict. They may need to distance themselves from the conflict in order to get a broader perspective.
Parties express anger to hide fear and vulnerability. The “mediator’s best tool” for anger is curiosity about the underlying fear rather than resistance to it. Questions can be helpful, such as, “Are your disagreements about the past concerned with who is to blame for what happened?” “Is it likely that the other person will ever agree with you? If not, what would it take for you to give up your efforts to convince your opponent that you’re right?” “What are your goals for the future?”
Develop patterns of consistency
We commit ourselves to consistency as a way to save face. It works because we think of ourselves as the kind of people who would do things to support what we supported earlier. For example, if someone agrees to one thing, donating to a school for example, they are more likely to agree to the next request from that school for a bigger donation. The first request gets a “foot in the door” for the next request. We can also be influenced by “sunk costs” for the same reason – we want to appear consistent with prior positions or commitments. We tend to follow through with commitments, even when terms are made less favorable later on.
Provide time and space
Sometimes mediators need to give parties time and space to construct their own “hero story.” Parties may confer with important third parties (spouses, family, friends, colleagues, superiors, et al.) to justify their choices and seek affirmation regarding final settlement terms. Mediators may not have anything to do with the outcome of those private conversations, but they got the parties to that point just the same.
“Saving face” in mediation is an emotional need we have to feel good about ourselves and our choices. When helping parties settle workplace disputes, mediators should understand how “face” becomes important and why it needs to be saved. Face lives within the power struggle of negotiation and resolution of disputes that are important to us. Face is expressed through our emotions, which run high in employment disputes. Face is comprehended through and rooted in our personal narratives.
Perhaps unknowingly, mediators work with and work on the essence of participants — where conflict burns hottest. Mediators must prepare themselves to work within the private, delicate interiors of participants with respect, authenticity and trustworthiness. To be most effective, mediators need their own interiors to be centered and confident. It is a tall order but critical for success when mediating intense conflict, especially employment disputes.
Jeff Trueman, an independent mediator in Baltimore and former director of Civil ADR for the Circuit Court for Baltimore City, can be reached at [email protected].