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Reflective Practice - Observing Mediator Language

by Jonathan Rodrigues

July 2020

Jonathan Rodrigues

The art and craft of mediation, like many other skills, mainly matures from the myriad mistakes mediators make on their way to meticulously mastering the process.

If you read the above phrase again, you will notice my ‘alliteration addiction’ has spilled onto my writing and I have noticed this habit of sentence structuring getting out of control, even in my spoken English. It might seem like a trivial matter to most readers, but if you add up the minutes wasted on this obsessive-compulsive habit, it makes for an unproductive desk day.

So, why did I invite you to indulge in my personal problem, which will have absolutely no relevance to the rest of this article? – To highlight the importance of being aware and accepting of our limitations, no matter how trivial they could be. Reflecting on our smallest behaviours gives us insight into how others might perceive us as mediators. Micheal Lang has spent years making a rich case for Reflective Practice and the significance of “reflective practice groups” towards professional growth.

Pursuant to my LL.M. studies in Mediation and Conflict Resolution at the University of Strathclyde, I am convinced that a reflective mediator doesn’t only benefit from analysing his or her own behaviour, but also benefits immensely from observing others engaging in their practice. Playing the role of an observer at mock mediation simulations on an ‘Intensive Training Weekend’, I was fortunate to witness a few striking mediation moments, while my peers were at work. This article focuses on three very ordinary moments that could have disappeared into thin air, had they not struck me personally.

MOMENT ONE –   “What would you like to share with us, today?”

After completing her mediator’s opening remarks, a colleague looked at one of the mediating  participants and said, “What would you like to share with us, today?” As simple as it sounds, this is such a welcoming approach. For starters, it’s an invitation, which means the participant can refuse to share or choose to share what he / she wants at this stage – very important, as the conversation is still in first gear and most participants are cautious. This is also relevant to understanding how to engage introverts in a mediation setting. Some participants tend to feel less comfortable speaking in stranger environments or when put on the spot, and therefore, it is important to make them feel safe right at the beginning.

Secondly, it has an underlying tone of ‘privacy’, as sharing is a choice and you share your real interests only when you trust the people and surroundings. We often take it for granted that everyone who opts for mediation is raring to go hammer and tongs at the table. Expecting and demanding participants to speak in a mediation can be catastrophic to the process – the mediation could abruptly end and the beleaguered participant would have had a bad impression of mediation.

Blogging about the Art of Conversation, Katherine Triantafillou says, “What brings people to mediation is that they have a conflict that they wish to resolve and don’t feel able to have that conversation alone or among themselves”.  So, if that’s the case, we want to make sure we gently nudge them towards a dialogue. Setting the tone is very essential, and the words we use determines the approach of the participants. If we make it sound like they are presenting their case like at court or a tribunal, then it will sound more like a ‘monological’ trial court hearing and less like an opening to a dialogue. I have heard many mediators turn to either participant and say, “You may now present your case” – blasphemous to my ears.

Thirdly, it’s extremely empowering for the participant as he/she is given the opportunity of being heard, without any interruption or time restrictions. As discussed earlier, not every participant enjoys the spotlight early on, but there are some who do, and this serves as a stage for them to articulate with freedom. Professor Sherry F. Colb, who speaks of Mediation as a different kind of conversation, admits that she can’t help but think that though interactions are technically taking place between the disputing participants, “it is easy to imagine that each one has in his or her imagination a neutral judge or jury that he or she is addressing and before whom he or she is building a case.” This observation calls for a prudent and conscious use of vocabulary and sentence structuring at the beginning of the mediation.

MOMENT TWO –  “Annie, Micheal, I believe I must interrupt…”

In another simulation, when a mediation session got a little tense and the participants began speaking over each other, a mediator colleague looked straight into their eyes and called them out by their names. “Annie, Micheal. I believe I must interrupt here as we are speaking over each other and not listening, and therefore losing out on some important communication,” she said. Once again, seems like a very simple sentence. However, the authority wrapped around that simplicity is profound. That strategy of calling them out by their names had a subtle hint of a disciplinary action, and yet, was calming and polite.

The participants immediately stopped rambling at each other, as they heard the sound of their names called out. It almost felt like they were two kids quarrelling on a playground and the teacher reprimanded them for bad behaviour. How much does the sound of one’s name affect their openness to listen? As Joyce Russel writes in the Washington Post, “It is one way we can easily get someone’s attention. It is a sign of courtesy and a way of recognizing them.” Additionally, I would argue that it serves as a spark of consciousness, reminding participants of their identity, their values and their perceptible personality.  

I suppose that calling participants by their name would also humanize the conflict and,  despite their differences, might lead them to accept and respect each other’s identity. Dan Simon, representing the Institute for the Study of Conflict Transformation, writes about the “healthy habit” of  Name-Calling in mediation. Some would argue that such practice is risky, and so it may be, but drawing inspiration from Dan’s advice on freedom of expression,  a mediator would do best to keep reminding the participants of who they really are, by regularly saying their name (with title or surname, if requested by participants) out loud.

MOMENT THREE “Stop arguing! Let’s try and split this”

In another simulation, the mediating participants kept bringing up an estranged relationship with their respective spouses and the mediator kept ignoring this issue, while diverting attention to the shareholding in the property (which seemed like the priority among interests set out on the agenda). The participants would steer every conversation to this deteriorated domestic bond, with their language clearly fanning the antagonism. Running away from the developing tension, the mediator began pushing the participants towards settlement. “Stop arguing! Let’s try and split this,” he said, at one point, nearly scandalizing the participants – who literally had the “Are you even listening to us?” look on their faces.

The mediator in this case wasn’t helping himself, as he seemed a little temperamental and self-conscious of the raging impasse, and didn’t address what was keeping the parties on the edges of their seats. With reference to the work by Kenneth Kressel and James Wall, where the duo speak about mediator styles, the mediator in this simulation was neither employing the “relational style” by easing communication and speaking about less tense matters, nor was he engaging the “pressing style” by taking measures to move the disputants from their positions and towards each other.

Shockingly, the mediator was bordering the arbitrary line with that single statement he made, which could easily translate to “I am not interested in listening to your quarrels, let’s get this done with.” And, if this is the message heard by the participants, then it’s a tragic failure of the process. We all know it’s important for the mediator to keep calm in tense moments and be confident of his or her presence in the room.

Escaping tense moments by demanding that the participants take the problem-solving approach and make offers is not appropriate. This observation would fuel the debate in support for an eclectic approach towards mediator styles – but, I will park this for another time. Rick Weiler suggests an interesting three-step strategy of “asking, listening and telling” in overcoming impasse in mediation.

Tenacity is crucial, as Hilary Linton explains, to opening up roadblocks faced by participants – but, so is tact. It personally benefited me to revise a few tips from Kate Otting on how to stay calm when mediations get nerve-rackingly intense. What we say, as mediators, is crucial to shaping the dialogue at the table. A wee word or a singular sentence has the potential power to build or bulldoze an open-ended conversation – Ah! The alliteration addiction kicked in again!

Jonathan Rodrigues is a member of the MediateIndia! Advisory Board.

Jonathan is a lawyer and mediator, leading the Online Mediation and Corporate Relations verticals at CAMP – Centre for Advanced Mediation Practice, in Bangalore, India. Jonathan is also engaged as Guest Faculty at MNLU Mumbai, at its newly launched post-graduate course in Mediation and Conflict Resolution.

Jonathan is trained and accredited as a Mediator by the Indian Institute of Arbitration and Mediation (IIAM), Cochin. He is also a certified civil and commercial mediator with the Indian Institute of Corporate Affairs (IICA), affiliated to the Ministry of Corporate Affairs (Govt. of India). He is trained and certified in facilitating cross-border family disputes by the summer academy hosted at Charles University, Prague, Czech Republic. Jonathan has trained with SCMA London and Singapore International Mediation Institute as a Mediation Lawyer.

He is currently awaiting his LL.M. degree, pursuant to studying Mediation and Conflict Resolution at the University of Strathclyde, Glasgow / UK. Jonathan is the co-founder and advisor at The PACT.



Website: campmediation.in/our-team/

Additional articles by Jonathan Rodrigues
The views expressed by authors are their own and do not necessarily reflect the views of Resourceful Internet Solutions, Inc., CollabLaw.com or of reviewing editors.
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