We’ve all learned about IED’s, improvised explosive devices. They are nasty, often indiscriminate and deadly. Their presence is sometimes felt in the form of statements made in mediations where one party will say something so outrageous it can undo any progress made towards resolution.

For example take a dispute between a property owner and his property association. The property owner is pressuring his association to make changes to the way they operate. As an aside, it’s interesting how often a complaining property owner has been on the board of the association and the person representing the board is a rival. The association is often represented by a board member and a paid property manager.

Discussions in the mediation proceed with emotions on both sides showing but under control and even though it is clear resolution will not be reached they do get to the point where the parties seem willing to continue discussions and are about to reach the point where direct communications between the complaining property owner and the board member are agreeable to both sides.

However the parties hit an IED in the form of a property manager statement basically accusing the complaining property owner of committing an offense against another property owner which is citable by the police. This incident has not been discussed with the complaining property owner as a part of the back and forth in terms of a work-up to see if agreement can be reached. No one is ready to deal with this issue this late in the negotiation. The impact on the complaining property owner is like the brain trauma caused by an IED explosion. As he leaves he just says “I’m going to have to figure out how to deal with what just happened.”

As a mediator I wish this was just an isolated incident. It isn’t. And, these aren’t the only cases in which IED statements occur. What motivates people to use such statements at late stages in a mediation? What if it’s one member of a multi-party group who blurts this out o the surprise of the other members? Are these situations salvageable?

In my experience the time between finding common ground towards progress and reaching resolution, or in this case agreement to move towards direct discussions, is a very fragile time not only because of the possibility of an IED statement, but it is an important concern.

The use of separate caucuses in this stage is often useful because they provide some time to reflect what an agreement may look like and gauge where each party stands. It is an opportunity for each side to confirm their willingness, reservations, and vent about the agreement they are about to reach. And, since they can ask for confidentiality in these areas I would like to think they would feel this is a good time to get concerns off of their chests. Some parties do need some process coaching. The people in the party may use this opportunity to voice their concern in the safety of the presence of a mediator. They may need to reach agreement not only about the proposed agreement but also about who is going to speak during these final stages of the mediation.

However, despite this and other steps to preclude the IED statement there is still a possibility one will occur. A mediator therefore has to be prepared to face the situation, triage, and either find a way to overcome the impact or mitigate the damage but that’s something which will have to wait for another blog entry.

Happy 2010!