Ask someone who’s been through a mediation what the process was like and they’ll probably describe it as follows:
“It was a long day. We started off in the same room, the mediator said some stuff, our lawyers said some stuff, then we went into separate rooms. The mediator came in and spoke with me, then said he’d go speak to my husband/wife. Then I waited until the mediator came back in with an offer. This went on for several hours until we finally got an agreement in writing that I signed. We left at separate times because we didn’t want to see each other.”
This is called “shuttle diplomacy,” and it is not mediation. It is the bane of every sane mediator’s existence, and a practice that poisons what is left of mediation as a whole. It’s lazy, it lacks the art of attention management real mediation requires, and leaves both sides with a bad taste in their mouths with regards to the process as a whole. Most people who go through mediation training know this, and yet it still continues to exist as a widely practiced form of alternative dispute resolution. This is the default to which many mediators gravitate because attorneys demand it, and one of the worst mistakes a mediator can make is marketing and tailoring a mediation practice to family law attorneys.
Shuttle diplomacy is lazy because you don’t have to work actively with conflict in one room. Many mediators justify the practice because the “alternative” in their heads is having both parties continually focused on the anger they feel towards the other side, instead of on the issues requiring resolution. These mediators more than likely don’t use any sort of attention management device like a whiteboard or flip chart to keep attention drawn to the issues. It’s also safe to guess they’ve not learned how to control parties in high-conflict situations. Finally, it’s a safe bet the mediator might be prone to capitulation when it comes to attorney demands. All of these are problematic when it comes to ensuring a positive resolution of your dispute.
Attention management devices are key because they keep people from thinking ill of the other party and focused on the issues requiring a resolution. No one likes staring across the table at a person that’s done them harm, physically or emotionally. The easiest way to fix this is to have parties simply looking at something other than the other aggrieved party who they can’t stand for whatever reason, like a portable white board or flip chart. Keeping the mediator in a position where both parties have their attention directed on the mediator and concentrated on the issues in play for resolution is a crucial way to command the room and defuse any sort of tension that might be present among the parties.
When you were in school, attention focused on the teacher, did you spend your time thinking about someone who you had issues with, or were you focused on the teacher at the front of the room and the blackboard on which he or she wrote? If you were interested in learning the material you paid attention to the teacher and not to the guy you wanted to fight after school ended for the day. The same holds true for mediations. If you want to resolve your dispute with another person and “get it done,” you’re more likely to focus on the issues at hand requiring a settlement than how much you hate the other person if your attention is directed away from looking at that party. If the mediation is taking place at the mediator’s office, some of the more high-end mediators will even use large computer monitors and case management software. The technology adds a certain “wow” factor parties don’t normally expect and defuses tensions even more than just the white board or flip chart.
De-escalation of high conflict scenarios requires a high emotional intelligence level, an ability to read people, learn when tensions are ready to engage the irrational centers of the brain, and how to deflect or defuse those moments. These are all art forms not readily taught in the short amount of training required to become a mediator in most states. Becoming an exceptional mediator requires active engagement in these areas and continued commitment to learning more high-functioning levels of your craft.
If you start in “caucus,” or in separate rooms with your counsel, from the beginning then there’s a good chance your mediator is capitulating to attorney demands that parties stay in separate rooms. If you start in the same room and caucus sessions break out immediately after opening statements, it’s a good sign the lawyers have more control over the mediation session than the mediator, or you. This is a problem. Allowing the mediation to break into caucus and remain there gives the lawyers more control of the mediation than you have. If you’re a party involved in a mediation, that isn’t in your best interest. The lawyers don’t have an issue with getting more power in the sessions, because it gives them more control and it’s another means of them justifying outlandish demands in the interest of zealous representation.
It’s not about the lawyer, though. It’s your case and your mediation session. You as the party can and should be the person in charge, and remain the person with the most at stake. The best thing is for you to remain at the table with the other party in conflict, work with your mediator and the attorneys in the room, and head towards closure of your dispute.
About a year ago attorneys at a Continuing Legal Education seminar on “next level” mediation techniques admitted keeping both parties at the table was “harder,” but acknowledged the agreements reached tended to maintain a level of stability “shuttle diplomacy” agreements didn’t have. That’s because mediation, practiced in its purest form, is extremely hard. It’s not something you can achieve at a high level of competence with just basic training or even cursory experience. When you do, however, and you remain committed to avoiding the “shuttle diplomacy” approach, you gain lasting results.
Shuttle diplomacy is easy, but practicing it is another reason Mediation is Dead.