Every competition, even mixed martial arts, have ground rules. In mediation one cannot overstate the need for civility and respect as the cornerstone for making progress towards agreement and resolution. That’s why you’ll see multiple entries in this blog on this subject and I’ll address the subject more fully on my blog at http://preventavoidresolveconflict.blogspot.com/ . Why are ground rules so important?

People coming into mediation are in conflict, emotions are running high, trust may be damaged or nonexistent. Direct negotiations are failing. What are they in conflict about? Their behavior in a relationship is being impacted because disagreements have grown into conflict or into dispute. The relationship is in jeopardy. They have called in third party intercession in the form of a mediator who has no power except over a process tailored to meet the needs of the individuals involved. Even there may be aspects of the process selected which does not fit the individuals involved. The last thing that clients and mediator need are a breakdown in process and focus on issues and needs overwhelmed by emotions, abusive language, verbal attacks, chaos.

So, ground rules serve as a basis around which party and mediator interaction are guided to stay focused on issues rather opposing parties on each other. Ground rules can also provide a critical element of safety for the participants. They also provide a framework for the dialogue which is to take place. What are some examples of ground rules?

Do not interrupt each other. You’ve probably already done that even before you engaged a mediator. What makes a person think it is any better with a third party present. It hurts listening to what the other is saying. It hurts the ability of the speaker to complete a thought process which may contain critical information which just does not get conveyed. It is disrespectful and may inflame the emotions of the other party and lead to a breakdown of communications.

Don’t attack each other. Problem solving is difficult to do if either or both parties are in an attack mode. The other party may reciprocate, become defensive, or just shut down. It leads to a conclusion that the problem is the other party which often times it is not.

If you need a separate meeting with the mediator ask for it. Joint sessions can and do get very difficult. A party may need a sounding board. The mediator just doesn’t get it because critical information is missing but a party does not want it disclosed to the other side. There are a variety of reasons why separate sessions or “caucuses” are extremely useful. Likewise a mediator may ask for a separate session with a party or both sides separately for the similar reasons.

Ground rules play a critical role in mediation and parties are well advised to understand ground rules and to discipline themselves to adhere to them.  It’s not like a court room where a judge does have authority a mediator does not possess. Ground rules are meant to ground mediation in collaboration and problem solving. In such an environment chaos due to lack of civility and respect for each other often create insurmountable obstacles.

Mediators are supposed to be neutrals and not prejudge people. But if a client is lying through their teeth, trying to manipulate the process, heavily influence me as a mediator, what then?

You may have heard a reference to mediation as a license to lie. When people come into mediation they do not take an oath to “tell the truth and nothing but the truth”. Notes taken during a mediation by a mediator do not survive beyond the mediation. It is rare for a mediator to be called to testify. In fact there are specific laws or rules of evidence which preclude calling a mediator into court and parties pre-agree not to do so. So, what’s to stop people with little regard for ethics from lying at mediation?

As mediator I can take a position that one party’s lying is the other sides problem. However , I do not care to be lied to or manipulated. I am not tied to a case like lawyers needing a courts permission to withdraw from a case. If I feel one party is lying through their teeth I may, and have, as politely as I can, withdraw from a case. This is not to say that for those rare times when I do withdraw from a case it is just because of lying.

The other fact to consider is that people on the other side of a dispute are pretty good at detecting lies.  Sometimes they even assert everything their opponent says is a lie. Sometimes you have to take these assertions with a grain of salt as well but I can’t ignore them. At the very least such assertions indicate the level of the lack of trust.

And finally, for a person who is lying and asking me to convey bogus information to the other side just makes it more difficult for me to be effective. So they are just hurting themselves and their negotiation position. Then there is the omission of something material, so they are not lying, but just using me to convey carefully selected information, with omissions of material facts, which they hope, coming through me, will be convincing to the other side. Their doing so, once again, effects not just their but also my credibility with the other side. For me, this is where probing questions, reframing, and reflecting what a party says is critical. Of course, if they want me to hold something confidential from the other side I am bound to do so. Just don’t ask me to be a pawn in an effort to manipulate opponents. It’s like cutting “fugu” too close to its source of poison is a danger to be avoided because you can kill a mediation.

In conclusion it’s not a good idea to lie, be manipulative, or try to influence me in a mediation. Ultimately it impacts not just my ability to be effective but undermines or destroys their position in the eyes of their opponent. Such actions can and do lead to mediation failures. Such failures further erode trust and in maintaining choice in utilizing mediation and ultimately in reaching mutual agreement without litigation.

When opponents are able to participate in a joint session with all participants present it is quite common to allow each party to make an opening statement. The format and content of opening statement varies.  When there is no preparation work done prior to the session it is common practice to ask “why are you here and what is it you hope to accomplish in this mediation?” When there is preparation and a “facilitative” approach is used the opening statement is normally focused on “issues” and “needs”. In these cases a mediator works with each client to narrow their focus on identified issues as a means to facilitate collaboration and find common ground. In the “why” and “what” approach the early part of a mediation is spent on identifying issues and needs before moving towards identifying common ground, closing gaps and disconnects, and moving towards resolution. The "why" and "what" approach runs a greater risk of being haphazard, less well thought out, reaching agreements which may more easily fall apart. The “why” and “what” approach is quite suitable for cases which are not complex.

During preparation I endeavor to make clients more like a chess player, meaning, think beyond one move and try to envision the entire board and game. The opening statement can play a pivotal role in this regard.

I will address opening statements more thoroughly and provide examples in my blog at:

http://preventavoidresolveconflict.blogspot.com/ .

When teens are in dispute and adults get involved is it good to hold a mediation with both the teens and adults present? Are thee alternatives?

Before considering the benefits and drawbacks consider the three examples which follow:

1. Two teens have a dispute. One teen has a following and together they intimidate the other teen to the point she calls her father who shows up on the school grounds to protect his teen (John). There is a confrontation between the father and the teen causing the intimidation on school grounds. School officials get involved, police arrive, and the parent is escorted off the school grounds. The parents of the teen causing the intimidation (Brad) are called by the concerned father and they argue. They agree on mediation. In this case John has already confronted the intimidating teen and his parents Brad. John brings his daughter while John does not. Good idea?

Here’s what happens. The parents do all the talking, negotiating, deciding on an agreement without the input of the intimidating teen. John lets it be known that he has already taken punitive action against his intimidating teen.

1. One teen assaults another teen. Long afterwards issues simmer and look like they are heading to the boiling point. The aggressors parent (Alice) asks for mediation in the hopes of preventing another fight. The victims parents (Butch) agree. Both teens are present. Good idea?

Here’s what happens. Butch reveals a very serious physical problem with his teen and the potential (including fatal) consequences of another fight. Both teens recognize the seriousness of the problem and reconcile. Both parents are very supportive.

2. Two teens are part of a family involved in a neighbor with neighbor dispute. The neighbor is an elderly woman (Rita) who has lived in the area forever as the teens and the parents (Dave) are only recent arrivals in the neighborhood. Dave and the teens are present. Good idea?

Here’s what happens. Dave’s teens are given an opportunity to provide their perspective and are disrespectful of and offensive to Rita. Despite lengthy discussions no agreement is reached because Rita is so offended by what the teens said, her trust in Dave and his teens is totally broken. She is going to seek a permanent restraining order.

Let’s consider the benefits and drawback of having teens involved in a mediatin with both adults and the teens present.

On the benefits side:

·         Provides the teens with experience about the consequences of their actions which they might not realize without adults present. The potential consequences of another fight as revealed in case 2 above.

·         Provides the teens a ‘safe environment” in which they have the opportunity to communicate with each other through a third party adult. The presence of well behaved adults adds to their feeling of safety.

·         Provides the teens interaction between themselves and adults also involved in the dispute. In case 2 the victims parent dramatically reveals the medical predicament of her teen and the potential for fatal consequences should another fight occur.

·         Can be very a very positive life experience by providing focus on their issues and needs. In case 2 and after the mediation the teens are seen hugging each other in an act of true reconciliation.

On the drawback of having the teens in with a mixture of their peers and adults:

·         They may feel a very significant power imbalance. In case 1 the teen being intimidated appears totally confused and disoriented, surrounded by adults.

·         They may be so immature they don’t realize the impact that what their saying may be offensive to adults and have consequences on the issues involved. In case 3 it is the teens offensive and abusive statements which doom the mediation.

·         The adults themselves may exhibit conflict behaviors themselves and between themselves. In case 3 the adults with the teens set the stage for confrontation which was followed in kind by their teens.

The above is only a small sampling of the issues when teens are involved in a dispute or adults are mixed in during mediation. Points to consider:

·         Preparation. Teens are just like anyone coming to mediation they have to be prepared and in a way that recognizes the presence of adults.

·         Adults can set the tone which their teens emulate.

·         Parents usually best understand the maturity of their teens and any supplemental help that will need to be provided by the adults to make up for their immaturity.

·         Teens may have access to peer mediation of their dispute and even if the parents are involved peer mediation may be as good as if not better than a mediation involving both parents and their teens. A question to ask is whether the underlying dispute needs to be settled first before tackling the adult dispute.

·         Mediation is best when there is collaboration, conducted as problem solving, and with an understanding there is likely to be negotiation involved. Making sure that both adults and the teens are in this mindset is critical.

·         Teens and the adults may be best served if they look at mediation as not only resolution in the present but what is the take away message from a mediation 3 or 6 months from now.

·         Teens and adults may also have to consider such factors as “peer pressure”, face, their standing in their peer group, etc. in resolution of their disputes and the priority such factors have when reaching resolution.

·         Adults should never underestimate the power and creativity of a teens mind nor their views about what’s important to them nor should adults ignore such considerations.