ContradiCtionsandBaLanCeinmediation
Mediation & Arbitration Section Chairs : AmberBoles – LawOfficeofAmberBoles & LaraTibbals – TibbalsMediation , LLC
itisinthebalanceof thesemanycompeting contradictionsthat themediatorassists thepartiesin reachingresolution .
Mediating is a job full of contradictions . It sometimes seems that to be a successful mediator , one needs a split personality . The mediator works alone , without an opportunity to see how other people would do the job . Although others rate a mediator ’ s success by the number of cases resolved , the mediator should never be driven by settlement . To do so would perhaps risk the mediator ’ s most important role — neutrality .
We know a mediator must be neutral , impartial , and treat both sides without bias ; yet as humans , we all have bias . The neutral must be able to identify bias , including implicit bias , when it arises and not allow it to impact our job . The successful neutral must be able to respect the issues presented by the parties . No matter how unreasonable a position or an individual may appear , the neutral has to be able to hear that perspective and seek to address the issue , no matter how challenging . At the same time , the neutral seeks to bring a dose of reality to the discussion , communicating with each party about the perspective of the other .
To share these perspectives , the mediator must have excellent communication skills , quickly articulate issues , and maintain productive dialogue throughout the negotiation . At the same time , the neutral must know when to listen . The parties need the opportunity to communicate their concerns and feelings . Given the expense of our process , the mediator has to find the delicate balance between helping to focus and move the case forward without the parties feeling overly rushed or unheard .
This brings us to the issue of patience . The mediator cannot rush a case to resolution . Sometimes , patience becomes one of the most important elements of the mediation as the mediator cannot be too quick to declare impasse . However , the mediator must not allow the mediation to move beyond the point of productivity . This can be a challenge when one side is trying desperately to make progress , and the other side is frozen . The mediator must balance these conflicting concerns and try to facilitate forward movement provided the dialogue is productive .
There are many other contradictions a mediator must keep in mind . The mediator needs problem solving skills and the ability to help creatively resolve conflict . Yet , the mediator must accept the limitation of a role that does not control the outcome , as the parties must have selfdetermination . The successful mediator understands the applicable law but cannot give legal advice . The artful blending of these two conflicting concepts can help the parties evaluate their positions and willingness to compromise .
Recently at a conference , one of the attendees commented that an effective mediator maintains a balance of honey and vinegar . “ Vinegar ” to say the things in each room that the parties need to hear to understand the other side ’ s perspective , and “ honey ” to show the parties the respect and compassion they may need to reach resolution . It is in the balance of these many competing contradictions that the mediator assists the parties in reaching resolution . n
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Author : Tamlyn Sbar – Sbar Mediation
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