Preview only show first 10 pages with watermark. For full document please download

What Makes A Good Mediator

   EMBED


Share

Transcript

What makes a good mediator?

Clear GOAL!

Yau H. L.

1|7

Introduction
A mediator plays an important role in helping to settle disputes and facilitate
negotiation among involved parties. As learned that mediation is a voluntary, nonbinding, private dispute resolution process in which a neutral person helps the
parties to reach their own negotiated settlement (Leslie, 2001), a qualified mediator
acts as a facilitator in this decision-making. However, being a good mediator is no
easy task. Apart from sticking to the professional code including confidentiality and
neutrality, in order to achieve the GOAL in mediation, four essential skills are
needed throughout the mediation process: Guiding skills, Organizational skills,
Awareness and Listening. In this paper, I will highlight these four indispensable
skills for a good mediator, by illustrating their significance with the support of
theories and literature.
Essential Skills for a good mediator
In the process of mediation, there are number of skills that a mediator should
possess. I would like to highlight four essential skills in the following, which a good
mediator should equip with to achieve the mediation goal.
Guiding
Skill

Organizational
Skill
Mediation
GOAL

Awareness

Listening
Guiding
In mediation, a mediator controls the process but the disputants control the
contents (Suzanne McCorkie & Melanie J. Reese, 2005). Guiding the mediation is an
instrumental skill for a mediator, guiding the direction, the tone and the whole
process of the mediation. To avoid any side of the disputing parties determining the
direction or controlling the mediation process, a good mediator should take the
responsibility to maintain control on the process. For instance, the mediator in the
opening phase, should mark his/her authority on the running of mediation and
explain the mediation process and ground rules to ensure parties’ cooperation in the
process. Without the mediator’s guide, parties may be out of focus on the issue but
focusing on attacking each other. And in the following process, a mediator need to
invite parties to speak out and exchange ideas. These stages require a
2|7

comprehensive and systematic guiding to a successful mediation.
Guiding the tone of the mediation is also crucial, for it affects the atmosphere of the
mediation. According to the emotional contagion theory (2005), it is believed that
one party’s behavior influences the emotions of others, as they are contagious. As a
mediator, he or she should adopt a proper tone on the table that it would calm the
disputing parties and make them feel secure and comfortable to talk to you.
Throughout the process, the mediator serves a role in ensuring the mediation goes
with a right direction and progress.
If a mediator cannot manage to guide the process of the mediation, any of the parties
may want to gain control of others or fall into irrelevant communication regarding
the issue, because disputing parties often have their own strong point of views and
feeling. It may lead to inefficiency or even failure of the mediation if the mediation
is out of control without a neutral person.
Organizational Skill
For each stage of mediation, a mediator needs strong organizational skill to deal
with the process and the information needed to include in mediation. In the
preparation stage, the mediator has to study on the content of the issue, organize
the details of the mediation and prepare an agenda. A good mediator should
organize in head and jot down the information and ideas, such as problems he or
she may encounter in the process and ways the problems can be solved; clues that
can be used in the process and the detailed arrangement of the mediation (Chirs
Freeman & Sandra Koop Harder, 2004). It is undoubtedly that a mediator should be
flexible enough to deal with the unexpected situation in the mediation process, but
organizational skill, is extremely important because the mediator should be clear in
mind what is going to be handled and how it can be handled before and during the
mediation. When the mediator can possess good organizational skill that one has
organized clear ideas and planning, he or she can react to the problems easier.
From the introductory process to the end, a good mediator should manage to
organize well in the order of speaking and analyze the information provided by the
parties in order to make things clear. Reframing and pure-content paraphrasing are
important elements in mediation process a mediator should possess, which both
require strong organizational skill. A mediator acts as an important role in making
the information more usable in the process while still affirming the general intent
of the parties (Suzanne McCorkie & Melanie J. Reese, 2005), and help summarizing
in his or her own word the essence of facts the parties relate to. Good organization
by a mediator helps information becoming clearer to both parties and reframes the
information into something more open to the mediation.
A good mediator with good and mature organizational skill can give parties a sense
of professional and confidence as well, which allows the mediation run smoothly
3|7

and in clear directions. Comparatively, if the mediator does not possess good
organization skill throughout the process, the mediation may go confused without
clear directions and that the mediation may not function as expected because poor
organization may lead to out-focus on the issue and inability to communicate
constructively among parties.
Awareness
A good mediator should aware of the issue, the process and the emotion of parties
in mediation. As mentioned that a good mediator should guide a mediation process,
he or she should be aware of what is happening at any point of the negotiation
(Richards, 1985).
Emotions and tone in the mediation is the most important thing a mediator should
aware of in order to settle them properly to maintain a rational mediation process.
As each parties has their different own point of views, strong feelings and emotions
that bring mediation on the table, it is inevitable to see people expressing their
negative emotions and feelings towards the issue or to the other party. A mediator
must be prepared to untie the braid of emotions that entangle parties so that a
rational resolution analysis can occur. A sense of satisfaction, fairness and justice
cannot occur until and unless you address the emotional triad of people (Joe Epstein
& Susan Epstein, 2010).
A good mediator should be sensitive enough to aware of offensive wordings or tone
involved in parties and stop them immediately because certain words evoke
emotion of both parties and may cause further tension and conflict to the table. This
is not a satisfactory phenomenon in mediation and the parties should follow strictly
the ground rules. A mediator should aware of the details of the conversation and
manage inappropriate manners among parties to facilitate rational discussion.
Moreover, the underlying problems implied in parties’ conversations are areas a
good mediator should be aware of as well. People may provide lots of information
and express their feelings through conversations or facial expressions, not only a
good mediator should listen to parties, but also stay alert with the meaning and
implications behind their conversations. One important thing is to aware of the
relationship issue in the mediation. People often turn into disputes because of
relationship problems. People often focus on people but not the issue itself in
mediation. It is important for a mediator to aware and to recognize the backgrounds
of the parties and the rooted relationship between them, so as to deal with the
human relationship issues following by the real issue.
Without good awareness in the process, the mediator may have a higher chance to
neglect some of the key issues and the situation the parties are facing. This can make
a difference because being unable to recognize the key issues can hinder the
progress of mediation. And if the mediator does not stay alert to the extreme
4|7

expressions and some offensive words, the mediation will probably break into a fight
between the disputing parties. It will put the mediation a more difficult situation.
Listening
A good mediator should be an active listener in the mediation process. Listening
seems an easy thing every normal people can do, but listening in mediation, is a
mental activity that requires attractiveness and energy. Person who is competent at
listening should understand the listening process itself, which involves reception of
messages, attention to the messages, concentration on processing the messages,
manage interpretation and memory (Ridge, 1993). From the perspective of the
mediator, it allows him or her to understand the issues and the different interests
and needs of the parties in the process (Arnold C and Clark A, 1996). What is more
important, from the perspective of the parties, it makes them feel heard, hence trust
relationship can be built among parties and the mediator, and mediation process
can be better facilitated.
As a mediator serves to facilitate communication, he or she needs to understand the
issue and recognize the different needs and interests of the involved parties (Tony
Bogdanoski, 2009). With reference to Mediation Theory and Practice (2005) and
Australasian Dispute Resolution Journal (2009), not only a mediator needs to listen
to the content of the dispute or issue, but also listen to the emotion and relationship
behind the dialogues, so as to allow the mediator to understand the underlying
situation that leads to the mediation and address the problem, like in a family
mediation case, a couples turn into dispute and want to divorce because they
actually lack communication, leading to misunderstanding and lack of care. The
mediator can then gather them on the table and encourage them to share their
feelings, so as to foster mutual understanding and peaceful communication.
And imagine that you think your spouse in some way misunderstands you and you
want to clarify yourself, you want somebody to listen to you. Imagine you want to
speak out your feeling, you will trust someone when he or she listens to you and
treat your matters seriously. It is believed that the core of human experience and
communication is indeed a deep desire to feel heard, and to know that others care
enough to listen (Stone D, Patton B & Heen S, 2000). By listening to the parties,
when they feel they are heard and cared, they tend to trust you more and feel
comfortable to talk to you. Parties will be motivated to continue communicating
and tend to provide an ever-increasing amount of information regarding the issue
(Binder, Bergman & Price, 1996). A trust relationship between parties and the
mediator therefore can be developed and a comfortable atmosphere is maintained
in the process, benefiting both parties.
If a mediator lacks the ability of listening to the involved parties, he or she can hardly
understand the existing problem between the parties and settle the dispute from the
root. Parties will feel that you are not treating their issues seriously as well, hence
5|7

affect their emotions and limit their openness to speak upon the issue.
Conclusion
Skills a mediator has to learn and strengthen are never too many, for sure time and
heart are needed to be devoted into enriching mediation experience. But in a
mediation process, instead of talking much, energy is much needed for a mediator’s
eyes, ears, mind and heart to process and settle a problem. To achieve the goal of
the mediation, which is to assist in settling a problem among parties and which they
feel comfortable with, a good mediator should be able to understand the needs of
the parties, guiding the mediation, aware of the emotions of parties and organize
well. Being heard, noticed and treated seriously, the involved parties in the
mediation have a higher chance to express themselves at the same time understand
each other better. A good mediator has his or her mission to guide mediation, assist
parties towards better resolutions and managing the parties in the process.

6|7

Reference
Arnold C and Clark A, Assessing Listening Behaviors of Mediators in Low and High
Coorientational Accuracy Settings (1996), 10(1) International Journal of Listening
65 at 65-66.
Binder, D.A., Bergman, P., & Price, S.C. (1996). Lawyers as counselors. In E.W.
TrachteHuber & S.K. Huber (Eds.), Alternative dispute resolution: Strategies for
law and business (pp. 41-48). Cincinnati, OH: Anderson.
Bogdanoski, T. (2009). Australasian Dispute Resolution Journal. The Importance and
Challenge of Active Listening in Mediation, 20(4), 201-206. Retrieved from
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1552671.
Charles Bultena, Charles Ramser, Kristopher Tilker (2010). Southern Journal of Business
& Ethics. Fighting Futility: Tools for Mediation Success, 2, 70-72. Retrieved from
http://www.salsb.org/sjbe/SJBE_volume1_2010.pdf#page=65.
Chirs Freeman & Sandra Koop Harder (2004). Victim Offender Mediation: Deepening
Our Practice Training Manual (pp. 124-150) (Dennis S.W.Wong, William
M.F.Lee, Shirley S.Y.Tsang, Trans.). Hong Kong: Breakthrough Ltd..
Collins, H. (2005, February). The most important personal qualities a mediator needs.
The Top 10, 3-16. Retrieved from
https://icfml.files.wordpress.com/2014/11/the20mostimportantpersonalqualitiesa
mediatorneeds_collins2005.pdf.
Joe Epstein, Esq. & Susan Epstein, Esq. (2010). Alternative Dispute Resolutions. Grief,
Anger and Fear in Mediation, 37-41. Retrieved from http://www.crsadr.com/articles/GRIEF%20ANGER%20AND%20FEAR%20ELECTRONIC.pdf
Lax mi Kant Gaur (n.d.). Qualities of a Good Mediator. Listening Patiently, 3. Retrieved
from http://www.delhidistrictcourts.nic.in/Q_mediation2.pdf.
Lesile, L. (2001). “Mediation in Hong Kong-An International Centre” Asian Dispute
Review, June, p.22
Ridge, A. (1993). A perspective of listening skills. In A.D. Wolvin & C.G. Coakley (Eds.),
Perspectives on listening (pp. 1-14). Norwood, NJ: Ablex.
Stone D, Patton B and Heen S, Diffıcult Conversations: How to Discuss What Matters
Most (Penguin Books, New York, 2000) p 163.
Susan S. Silbey & Sally E. Merry (1986, January). Mediator Settlement Strategies.
Settlement Strategies, 14-15. Retrieved from
http://web.mit.edu/ssilbey/www/pdf/mediator.pdf.
Suzanne McCorkie & Melanie J. Reese (2005). Listening: A Bedrock Skill for
Mediators. Mediation Theory and Practice (pp. 38-48). USA: Pearson Education,
Inc.
Suzanne McCorkie & Melanie J. Reese (2005). Trusting and Controlling the
Process. Mediation Theory and Practice (pp. 35-37). USA: Pearson Education, Inc.
Richards, C. (1985). Winning Your Way with People: The Executive’s Guide to Negotiation
Skills (pp. 8-10). Rydge Publications Pty. Ltd.
鄭會圻,《調解—突破談判困局》,萬里機構‧萬里書店,2009,頁 27

7|7