Mediation Skills and Techniques Review

Often when one hears the word “mediation,” the thought of pending litigation comes to mind.  This thought, however, is incomplete.  Disputes and conflicts are commonplace not only in the legal field, but also in businesses, families, and communities.  Mediation: Skills and Techniques (hereinafter Mediation) addresses mediation in ways applicable to all problems that arise in today’s society, not just litigated cases.  The authors address not only the roles of the parties and the mediators, but also the methods one should integrate into practice if one wishes to become a successful mediator.  Although Mediation addresses how to mediate many disputes properly, the text does not address all aspects of mediation skills, such as the impact of cultural factors and the role of children in mediation.  

Although the legal community generally focuses on using mediation to reach a definitive agreement, the authors argue it is not mediation’s primary objective.[i]  Instead, the primary objective of mediation is to assist the parties in making practical decisions about their disputes.[ii]  Essentially, mediation provides the opportunity for making better decisions involving issues such as “labor disputes, civil cases, community disputes, family matters, and public policy disputes.”[iii]  Moreover, the benefits derived from mediating disputes include “serving as a gateway to self-awareness, empowerment, forgiveness and reconciliation.”[iv]  The authors suggest that following the problem-solving process of mediation “naturally results in happier solutions, lower costs for the parties and the courts, and significant time savings.”[v]  However, to reach these results and properly assist in mediating disputes, a mediator must understand the theory and procedure of mediation, apply appropriate mediation skills, and assess performance through self-evaluation.[vi]  

Mediation’s authors explain that while not everyone is born with innate mediation capabilities, mediation skills can be acquired.  Regardless of one’s experience level, Mediation presents information and ideas in a way that will educate beginners and serve as a helpful reference for those who already have experience in the field.  Mediation educates and assists the reader by providing helpful examples, fact scenarios, case illustrations, and exercises throughout the chapters.

Mediation goes far beyond giving a simple overview of the mediation process.  Instead, it focuses on the universal, or “core,” skills and techniques of mediation,[vii] and addresses the cognitive learning approach to mediation by examining the scientific principles and theories underlying effective mediation skills and techniques.  Moreover, the skills taught and described, referred to as the “mediator’s toolbox of skills and techniques,”[viii] are applicable, say the authors, to the facilitative, transformative, and evaluative models of mediation.[ix]

Upon introducing the reader to the subject of mediation, and after addressing important subjects regarding preparation for the mediation meeting, such as seating arrangements that will maximize a feeling of comfort instead of confrontation, the authors turn to the essential functions of the mediator and explain a five-stage process of mediation. The first stage is the mediator’s opening, which explains the nature, steps, and style of the mediation, as well as the role of the parties.[x]  The second stage involves the parties’ initial statements about the particular problem at hand.[xi]  The third stage focuses on defining the problem and the concerns, needs, and desires of the parties.[xii]  The fourth stage is problem solving and negotiation,[xiii] and the fifth stage is the final decision and closure.[xiv]   The five stages are addressed with great specificity as to each stage’s purpose, principles, scope, and elements.  Moreover, the authors clarify any confusion and assist the reader by providing case illustrations, charts, and examples for each stage.  One example many beginners may find helpful is the example of a mediator’s opening statement on page seventy-two.  With the opening-statement example, Mediation does an excellent job of addressing the opening statement, its sections, and its creation.  After educating the reader on creating an opening statement, the text applies its principles to a sample opening statement and divides that statement into the sections previously discussed in the chapter, all in effort to show the reader how to apply what he or she has just read.

Although the authors provide much detail on the importance of the five mediation stages, they also explain that a mediator should be prepared to act from the first contact with a client through the conclusion of a mediation.[xv]  The importance of controlling the process and building trust, or what the authors call “climate control,” is of utmost importance.[xvi]  A few ways to create a climate of trust include educating the parties, creating a mutual understanding through proper communication, and being aware of the parties’ emotional and mental states.  Educating the parties encompasses explaining what the mediation entails, what the mediator’s role is, and what style the mediator uses, thus giving the parties an expectation of what is to come.  As for mutual understanding and communication, after briefly touching on the cultural communication differences, the text addresses the importance and impact of words, and the implications associated with non-verbal body language.[xvii]  While what mediators say and how they say it is important, the authors suggest most mediators’ time be spent listening to the parties, reframing statements, and asking questions, three subjects Mediation thoroughly addresses.

Mediation also notes that a mediator must always consider the individual’s emotional and mental state, such as whether a party is going through the grieving process, and if so, what stage.[xviii]  As with most mediations, intense emotions may be involved.  The authors describe separate instances when a mediator should discourage, ignore, or acknowledge these intense emotions, should they surface.  Specifically, Mediation gives suggestions and examples of how to neutralize intense emotions and improve the climate in mediation by (1) promoting optimism; (2) maintaining productive communication; (3) acknowledging concerns; (4) normalizing; (5) looking to the future; (6) mutualizing unhappiness; (7) reducing pressure to settle; and (8) using humor.[xix]  Mediation does an excellent job of giving in-depth analysis with examples of each of these eight subcategories.    

There is a difference, however, between intense emotion and conflict.  Although one would imagine that conflict and intense emotion are synonymous, this assumption is untrue.  Conflict is separate from intense emotion, and the authors suggest conflict can be healthy and often benefit the parties involved by causing improvements in relationships.  Conflict, they argue, is the active ingredient of creativity and growth.[xx]  Mediation asserts that conflict gives parties the “opportunity for acquiring a greater understanding of the other person, the situation, and themselves.”[xxi] For example, a conflict “between spouses can draw a couple closer together and fuel personal growth.”[xxii]  There are different kinds of conflict, however, and the authors describe different ways for a mediator to differentiate between productive and non-productive conflict, how to use productive conflict to the parties’ advantage, and how to neutralize negative conflict, should it arise.

Even though the authors suggest early on that mediators should not assume the role of negotiators, they explain that “mediation is a form of assisted negotiation, and mediators have a responsibility to improve the quality of the negotiations in which they participate.”[xxiii]  One practice the authors suggest utilizing throughout the mediation process is getting the parties to assess their own BATNA, as well as the BATNA of the other party.  BATNA is the “Best Alternative To a Negotiated Agreement.”[xxiv]  If parties are to make informed decisions whether to reject or accept settlement offers, they must know their BATNAs; otherwise, they are “negotiating in the dark.”[xxv]  Mediation explains that requiring parties to assess their own BATNAs will make them see the costs associated with continuing their disputes without resolutions, in addition to the costs associated with litigating the disputes, such as financial, time, emotional, and business costs.[xxvi]

Once the negotiation process has begun, the authors adopt Gerald Williams’ approach to mediation, an approach developed through the study of the legal field.  This approach involves four stages: (1) Orientation and Positioning – where parties adopt a negotiation style and exchange opening offers and settlements; (2) Argumentation – where parties develop and implement appropriate negotiation strategies and tactics; (3) Emergence and Crisis – where parties have nearly exhausted their patience or resources for making further concessions or trades; and (4) Agreement or Final Breakdown – where the mediator  works with the parties in bringing closure to the discussions, either through agreement or final breakdown of the negotiations.[xxvii]  Once again, for clarification purposes, the authors do an excellent job breaking down each of the four stages into sub-issues with examples and explanations as to what a mediator will likely encounter during negotiations. 

Mediation also addresses the subject of encouraging settlement and notes that a mediator should not coerce parties to resolve a dispute, but instead assist the parties in better understanding the dispute by using mediation methods to influence the parties’ perspectives.  The methods with which a mediator can engage the parties while encouraging settlement (which some readers will likely dispute) include (1) Providing Information – asserting objective truth about the situation; (2) Expressing Opinion – a personal evaluation  without firm advice or recommendation; (3) Advising – making a suggestion or recommendation based on professional assessment or experience; (4) Being Judgmental – a more severe evaluation of the parties’ statements or behavior; and (5) Acting as the Agent of Reality – encouraging the parties to face the realities of the situation when they are being unrealistic, uninformed, or intransigent.[xxviii]  The authors inform the reader to be careful, as there are some dangers associated with using these techniques to encourage settlement, especially if the true motive for using the techniques is to improve one’s own success rate or reputation.

For those just getting started in the mediation process, the authors include a final chapter specifically addressing how to become a mediator, where to get further education on the subject of mediation, and where potential public and private employment opportunities exist.  Moreover, the chapter goes as far as to give advice on how to market one’s own private mediation practice.

The ideas the authors present in Mediation are essential to a proficient study and practice in the field of mediation.  Although the principles, practices, and procedures the authors advocate are not entirely new to the field of mediation, the way they present this information to the reader is unbelievably clear and thorough.  The examples and samples provided throughout the chapters and in the appendix will assist all mediators, whether new to the field or seasoned practitioners.  Most importantly, Mediation goes beyond establishing the procedure and elements of a proper mediation.  The authors do an excellent job of not just explaining how and what to do in a mediation, but they also explain why.  Many times the theory, or the “why,” is more important than following instructions or procedure.  Mediation’s approach to the subject of mediation, and its ability to clearly explain the theory and principles behind the mediation process, make it an essential resource for all mediators to have in their libraries.

*    Walter Clark Martin IV is a 25-year-old native Texan from Houston who works for Shaw Pipeline Services, a third-party off-shore pipeline inspection company.  He received a Bachelor of Public Administration degree and Master's degree in Legal Studies from Texas State University-San Marcos.  He is currently a first-semester 2L at South Texas College of Law and hopes to become an asset to the legal community

 

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[i] Laurence J. Boulle, Michael T. Colatrella Jr. & Anthony P. Picchioni, Mediation: Skills and Techniques 1 (Matthew Bender 2008).

[ii] Id.

[iii] Id. at 6.

[iv] Id. at 2.

[v] Id.

[vi] Id. at 10-11.

[vii] Id. at 9.

[viii] Id. at 11.

[ix] Id. at 11-13.

[x] Id. at 61-63.

[xi] Id. at 63.

[xii] Id. at 84.

[xiii] Id. at 94.

[xiv] Id. at 101.

[xv] Id. at 23.

[xvi] Id. at 47.

[xvii] Id. at 115.

[xviii] Id. at 49.

[xix] Id. at 52-55.

[xx] Id. at 141.

[xxi] Id.

[xxii] Id.

[xxiii] Id. at 177.

[xxiv] Id. at 188.

[xxv] Id.

[xxvi] Id. at 194-195.

[xxvii] Id at 198.

[xxviii] Id. at 230.