Mediators have to be adept in soft skills to identify and break down the causes of an impasse between opposing sides. DSF lawyer and mediator Eric Gossin shares his wisdom and experience on the tricky task of bridging often seemingly insurmountable differences.
Grasping underlying issues
Disputes are often multilayered, and it takes a skilled mediator to peel them back and understand what's at the core. A superior mediator has the skill to read between the lines and intuitively understand what the issues are that are not spoken about. For example, in an estate matter between siblings, the background of their relationship needs to be taken into consideration. At times it may be necessary to address the personal issue that the father has always favoured one of the other and the hurt feelings this caused in order to be able to get to a compromise regarding the legal issue.
The mediator moves away from the money and property issues, in an attempt to get one party to understand what is bothering the other side. The goal is to get the parties to acknowledge the other side's real interests.
Getting parties to talk
In order to reveal underlying issues, the mediator needs to get the parties to talk, which is not always an easy endeavour. One strategy is to focus on things in the parties have in common. Another is to convey to them that the other side is giving conciliatory signals. Such commonalities and signals are usually overlooked by parties who are in rigorous dispute. Making them see these signals and common interests, it takes lots of restating and reframing of positions by the mediator.
Another strategy is directing the parties to areas where something positive can be accomplished, even if it is small at first. Small victories will help them move to a position that can break the impasse on a larger matter.
If parties are immovable and none of the above bear's fruit, it is a good idea to carefully point out respective weaknesses in the parties' cases. This will showcase that litigation, the alternative to mediation, and the route that the case will often take if mediation fails comes with risks. A judge's decision may well be one where neither side is getting what they want. It is in only in rare cases that one party gets all they want. Compromises are the rule. Realizing this will often keep the parties at the table and make them more flexible so that a stalemate position is avoided, which is the first step to a settlement.
Sometimes a mediator will invite third parties into the mediation - such as a shareholder, a spouse, or business partner - if he thinks that will help move the matter forward.
The Relation between mediators and Lawyers
In Gossin's observation, it is common for lawyers to take the position that they have made their final and best offer, or to pronounce a stalemate. A mediator then has to walk a fine line, careful not to undermine the legal advice of the parties' lawyers.
Each lawyer has the obligation to put forth and defend their client's case, but sometimes seeing what is in the client's best interests is not always cut and dried. Lawyers may not always dig deep enough to reveal the underlying issues that stand in the way of a settlement.
The situation can become difficult for a mediator when he or she realizes the impasse is because of counsel. Sometimes a mediator can sense that if it wasn't for counsel, the client would be prepared to move. Sometimes the reverse happens where the clients are stuck, and the lawyers are encouraging them to settlement.
That dynamic is a great challenge in mediation, and one of the things that separate the average mediator from a better one is their ability to recognize that tension between the lawyer's legal position and the client's - and whether one or the other is more enthusiastic in settling.
Admittedly, sometimes people just want to fight. Mediation cannot solve every case, however, in most cases, it is successful.
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