It really is helpful to bring the key players together; in one recent matter, the two senior decision-makers were among the best negotiators I have ever observed. We met regularly throughout the two mediation days to discuss strategy, the involvement of others, the squeeze points and how best to deploy time and resources. This whole collaborative approach paid dividends when the crunch came and they needed to bridge a very significant gap. And then, make use of silence….let them talk it through, touch the void, work out the realities, even if the answer seems obvious to the mediator.
Recently, rather than starting with a joint meeting or with one party setting out how they saw their claims, I invited both groups at the outset to prepare the bullet points for the press release they would issue when the mediation concluded. We then got together and brainstormed to reach a commonly agreed framework which I subsequently put into a couple of paragraphs for them to use. More importantly, the exercise identified what was important and showed that the monetary claims were only one aspect among three essential issues, of which a continuing collaborative relationship was also vital. As a result, we were able to prepare, jointly, an imaginative agenda.
In another example, as the parties signed the final resolution agreement at midnight, and prompted by a remark by an individual near me, I played a bit of The Winner Takes It All, by Abba, on my iPhone. Taken in isolation, that seems ridiculous. But it worked, when taken as part of a pattern in which we had kept spirits up through a difficult evening of drafting, during which parties’ had engaged in a musical quiz built around identifying a song, its origins and chart placing in 1975. This had helped people to relax at a very tense moment, and it fitted the occasion. I followed up Abba with Wings’ Goodnight Tonight… I then offered a sombre reflection on the contrast between the apparent triviality of the music and the excellent job each person present had done, naming them each individually, and commending them on the outstanding outcome they had achieved. This mixing of lightness of touch, releasing the hormone oxytocin, with the dignity and seriousness of the process (and the adrenalin and cortisol that stress inevitably produces) seems to be important. And finishing on a high note is really worthwhile.
Coaching individuals in a mediation about their and others’ behaviour will pay dividends if it helps them see themselves as others see them. Sometimes, that needs to be frank and can only be done if the mediator has built trust and rapport. Being humble and accepting that you may have made a mistake or given a wrong impression helps to aid authenticity, which is essential for us all, mediator and others Encouraging and supporting the apparently difficult people is vital too. They are only trying their best as they see things. Asking bold, daft laddie questions can be empowering of others if they are struggling. And avoid telling war stories about yourself; that rarely works. But encourage others to share experiences that may be useful to the process.
