John M. Haynes, one of the founders of modern mediation practice, postulated basic tenets of mediation which are useful to recall when mediating a difficult case:
- The mediator is the manager of the participants’ negotiations. The participants control the content while the mediator controls the process of the mediation. However, the mediator should take a minimalist approach to mediation, and do only what is essential to keep the dialogue moving forward.
- The task of the mediator is to help the clients reach an agreement about their future relationship that is acceptable to both of them and enables each of them to get on with their lives. Mediation is designed to help the participants shape their futures, not settle the past.
- Mediation, therefore, is not about finding the truth, since most disputes are about perceptions, not truth. If the mediator gets caught up in searching for the truth, he or she may well find it, but on discovering the truth the mediator will have changed his or her role from mediator to judge. As a result, although the mediator may discover the truth, the mediation may end prematurely without resolution.
- The mediator should also avoid determining right and wrong. In mediation, there is no right and wrong, only differences of opinion. Each participant in the mediation is entitled to his or her different opinion without judgment by the mediator. To be effective, mediators must be nonjudgmental. Once the mediator considers one participant more right or wrong than another, he or she has taken a position against the future interests of one of the parties, making it more difficult to shape a balanced, mutual and future-focused solution.
- Mediation is about creating an environment in which new ideas for the future can be considered and the new ideas should protect the future interests of the parties.
- The outcome of every successful mediation is some kind of negotiated agreement. However, few people come to mediation with good negotiation skills. Indeed, if people had negotiating skills, it is unlikely that they would need mediation. Therefore, the mediator must spend some time in mediation teaching the participants how to negotiate.
- In order to move toward a solution of the problem, most people must be able to save face in leaving a strongly-held position. Thus, a person who has denied the existence of a problem must be helped to save face as he or she moves from defining the problem to discovering the solution. It is the mediator’s responsibility to assist the parties by constructing an environment in which face-saving is possible by using strategies which help each of the participants move toward solutions.
- At all times, the mediator is trying to develop a climate in the mediation in which participants are looking at the issue in dispute from a range of perspectives. In most cases each participant has come to the mediation locked into a specific story that explains how the parties got to the mediation. The story puts the teller in the best light, puts the other participant in the worst possible light, and defines the problem in such a way that the only solution to the problem lies in a change in behavior by the other party. The mediator’s job is to help participants look at alternative perspectives of the same story.
- Thus, an early task of the mediator is to help the participants discard their individual definitions of the problem and pursue a new, mutual problem definition that, when solved, benefits everyone. The mediator uses various strategies to help the participants arrive at a common definition of the problem. These strategies include mutualizing, normalizing, maintaining a future focus, focusing on what the participants want, and summarizing.
- The golden rule in mediation is to let the participants speak for themselves. More movement takes place when the participants deal directly with each other. Further, the best and most secure agreements come about from direct participant negotiations. Simply stated, in order for the mediation to be successful, the participants must own the content of the discussion and the ultimate agreement.
(Source: Mediation: Positive Conflict Management, Haynes, Haynes and Fong, SUNY University Press, 2004.)
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