From what I’ve noticed, mediators aren’t really a dime a dozen brand. Nor are their individual styles remotely similar to each other. Well, at least that could be the case from the majority of mediations I have been through. What I have seen, through observation and co-mediation, is that no two mediators are alike. Each mediator develops their style for what fits them best. Nevertheless, many teeter on the edge of lawyering, arbitrating and counseling.
A few weeks ago, I posed a question to one of my colleagues. Why is it that we cannot give legal advice and yet nothing is said about counseling our clients, save the fact that in the agreement to mediate, it states that mediation is not counseling? Furthermore, which style is more conducive to therapy? A directive approach or a facilitative one?
Observing one mediator, I was struck at how his more directive approach, in my opinion, imitated therapy more than the facilitative approach that I have adopted and which is used at the CMC. If we are to be directive, opinionated and suggestive in our mediation, doesn’t that lend itself to therapy? After all, a therapist gives their opinion for your behavior. As mediators, the line to walk between making the session therapeutic and facilitative is a fine one. But that line is even more fine when a directive approach is used.
In all, mediators must find the characteristics they wish to emulate to successfully operate a session. I have found that the best mediators have two things in common. They are succinct and they are distant. Succinct in their ability to rephrase and paraphrase language into clearly understood, often layman sentiment that construes the very interest of the client, yet can also save face.
They are distant, in that when they are in the mediation room, they are no more than an observer. And when they leave the mediation room, the clients and the case stay behind.
This is the role I have observed to be the most effective in mediation. Staying close without being involved. Being on top of the situation without being all over the situation. It is the client’s process and their time. It is their conversation.
Many people may feel that the facilitative approach is costly in terms of time and energy. But I have found just the opposite to be true. If done properly, facilitative mediation allows clients the essential story-telling that is needed to get beyond positions and to the root of the dispute. It is more efficient in that after this phase, however lengthy it may be concludes, the clients can move on to business.
I also find that it is less like therapy in practice while being more therapeutic in effect. By staying objective, distant, and succinct and by simply “listening and repeating” the mediation takes on a life of its own. The clients feel heard and validated. And the process moves on, without alteration or pretentious ad-lib.
-Jason Clevenger
