I recently fulfilled a long-held ambition: to complete an intensive, 40-hour mediation course, culminating in the receipt of a certificate from the Santa Clara County Office of Human Relations. I wanted to do this training for several reasons.
First, I thought it would be helpful to my clients for me to have a better understanding of the mediation process; to know what to expect and to be able to roll with the punches in an actual mediation. Second, I have a sense that I have a talent for this work. It requires a number of skills: being a good listener; being a quick study; and being empathetic. At the risk of sounding immodest, I have all those qualities in spades.
I also thought that the training would help me to help my clients deal with the anxiety of a mediation. For the uninitiated, a mediation is a way of resolving a dispute without the stress/expense/uncertainty of a trial. When a matter is successfully mediated, the parties solve their own problem(s). (Hopefully with the help of their attorneys, and not in spite of them).
There are different types of mediation. Lawyers are mostly familiar with what the mediators call “caucusing.” This is where the parties are separated and the mediator shuttles back and forth with information and (hopefully) offers. This can be good and bad for a client. On one hand, the client is spared the indignity/stress of hearing all sorts of negative things about himself or herself, their business or their conduct. On the other hand, the client may not get a real opportunity to vent, which is something that most clients badly want and need.
In other types of mediation, the parties stay together for the most part and the mediator essentially guides a conversation between them. The thing I found most interesting in my training, as we did role play after role play, was that people will initially take very hard positions, with firm lines drawn, only to retrench IF given an opportunity to speak their mind and their truth. It is, quite simply, a matter of helping the parties see the other’s point of view and to help each party see the other as a human being with real problems.
I also learned about conduct that can cause a mediation to break down. Not surprisingly, the same type of conduct can cause problems outside of litigation–like at home. A very common example: “Deflection.” Deflection is where someone tells you an unpleasant truth about yourself, say, “you’re always late.” Instead of acknowledging that truth, and maybe apologizing,you say “Hah! You should talk. You would be late for your own funeral.”
I understand deflection. It feels unfair to be accused of something of which the other party is “equally guilty.” However, when one deflects, one essentially ignores the complaint of the other side and things deteriorate from there. Bottom line: Deflection, albeit tempting, is not good.
Other things that can hinder a mediation: Interrupting, being rude, not listening, monopolizing the conversation, rigidity, yelling, impatience and dismissive body language. Think about this list and then think about the last argument you had with someone important to you: I’ll bet either or both of you committed at least half of the sins on that list. In my training, I really learned about the extent to which how we behave can affect a dispute, perhaps even more than the merits of our position.
I am looking forward to mediating cases for the county and for my fellow colleagues in the bar. I think that my training will stand me in good stead and that I will help my mediation clients to solve their problems efficiently, unemotionally, and above all, to the parties’ mutual satisfaction.
