Mediation issue drivers- often subtle and not revealed
It’s amazing what you learn in working with colleagues. In doing a video we filmed a teen conflict in which one fact turned the tide in favor almost certainty of resolution. One of the teens was so fragile that one blow could kill her. During the panel discussion an observation was made that in most cases trust has been broken and the issues behind a dispute are often very subtle with a significant reticence or even total resistance to reveal issues driving a conflict to a mediator. The challenge then is to build trust between a mediator and client in a way which a client is open about subtle issue drivers in conflict. The other element which needs to be leveraged is confidentiality during separate sessions with each of the clients. Mediators are bound by legislation or court rules from disclosing to the other side disclosures made by a party should they ask for the disclosure to be held in confidence with few exceptions like statements of imminent violence. The challenge for a mediator is to demonstrate trustworthiness and commitment to confidentiality in such a manner as to make a client comfortable. An example of a subtle issue for a client is demonstrated in one of our video vignettes dealing with a car accident. One spouse had taken the other spouses beloved vehicle on an errand and wound up getting into an accident. Because the mediator had built trust and emphasized confidentiality the client revealed that if they couldn’t get money to fix the damage they would be in deep ….. This disclosure certainly helped the mediator understand a driver behind getting a negotiated settlement in mediation rather than take one’s chances in a trial.
Every case has some level of subtlety and many times issue drivers or other issues are not revealed yet impact the path to resolution. Often the more open parties are about issues driving a conflict the better a mediator can interact with the other side. Openness is not always achieved and even if a conflict appears to have been resolved there’s a greater chance an agreement will not be lasting.
