VIII. Peacemaker Techniques to Resolve Disputes

As noted previously, the primary goal of the peacemaker is to build rapport and trust so that she is better positioned to help the parties find closure. The mediator has certain tools and techniques that will assist her in the process.

Rapport and trust must be earned. This begins by the mediator remaining calm, patient, and compassionate. However, the tools she uses are, indeed, the antithesis of those of the trial lawyer. The latter relies on highly confrontational tools that are designed to cross-examine, impeach, discredit, and undermine. A trial lawyer puts the opponent on the defensive. The trial lawyer’s purpose is to win by defeating the party-opponent. The peacemaker’s tools, on the other hand, are designed to be supportive, to establish peace, and to bring the parties together so that all are winners. There is no satisfactory resolution unless all are made winners. The common denominator of the peacemaker’s tools is that they are nonconfrontational and avoid putting a party on the defensive. There are several reasons for this.

First, the mediator who utilizes techniques that are confrontational, albeit well-intentioned, merely polarizes the positions of the parties. Confrontation requires a response which, by its very nature, is defensive. Being defensive draws a line between the mediator and the party, which can be a barrier to resolution. The mediator who plays devil’s advocate forces the party into a defensive mode, which can lead to arguing between them, and that undermines the process.

Second, the party who is forced by the mediator to defend will rationalize the logic of her position and will thereby gain a vested interest in that position, which can become difficult to relinquish. Later compromise would appear to be surrendering or backing down.

Third, the mediator who challenges or confronts a party gives the appearance of being partial to the other side. Neutrality might be questioned. Even if, in fact, neutrality is maintained, there is the appearance of partiality. A mediator can play devil’s advocate with both sides so effectively that both may accuse her of being partial in favor of the other. This approach may demonstrate the ultimate goal of neutrality; however, rapport is not established.

To build rapport and trust, the mediator should continually ask herself whether what she is saying or doing will be perceived as being supportive or whether it will seem adversarial or confrontational. If the latter is the case, the mediator needs to pull back and rethink her approach. A confrontational question or statement needs to be rephrased, a brusque manner softened, and the appearance of frustration replaced with patience and affirmation.

Eliminating confrontation and taking a softer, gentler approach will ultimately break the barriers of intransigence. The following techniques are designed to do just that: the art of agreeing; the art of disagreeing; being actively supportive; showing interest in the party and counsel; developing a strategy for each side; building a team concept with each side; using nonconfrontational language; calming the waters of anger and frustration; and eliciting an apology and forgiveness.

A. The Art of Agreeing

As a general proposition, whenever possible, the mediator should find ways to agree with each side. The more supportive she can be in this regard, the more rapport she will build.

The art of agreeing, however, is an effective peacemaking tool that can be used to defuse potential arguments. If the mediator finds herself locked in an adversarial encounter with one of the parties or counsel, she needs to find a way to neutralize the exchange as quickly as possible. Engaging in an argument, even as devil’s advocate, can only undermine the primary goal.

Attorneys are particularly prone to argue, and not infrequently they will engage the mediator in an argumentative exchange. An effective way to neutralize this is, whenever possible and reasonable, to say, “I agree with you.” These words are extremely disarming and can defuse an adversarial encounter quite rapidly. A party cannot argue with herself. By agreeing there is nothing left to argue, there is no basis for further contentious exchanges, and no further energy will be lost in confrontation.

In agreeing, the mediator is really signaling she wishes to be supportive and not confrontational. It indicates that she cares and is not judging, but wishes to work with the party toward resolution. It affirms that disagreement is not part of the settlement equation.

If the mediator has difficulty agreeing outright with the party, she can use a softer form such as, “I do not disagree.” This can be just as disarming, yet it conveys a slightly different message. It says the mediator does not wish to argue the point, although she may or may not be endorsing it. She is trying to make clear that differences are not what matter; rather, it is working together for a common end that is paramount and the only consideration.

If the “I do not disagree” response is still too strong, the mediator can use even softer expressions of agreeing, such as, “I hear what you are saying,” “I understand,” or “Help me better understand.” These expressions also signal a desire to work together.[102]

B. The Art of Disagreeing

There are times when a mediator needs to signal to a party that the position taken is untenable and could lead to failure at trial. To not so signal would be a disservice to the party and counsel. This is not being judgmental, but rather being objective.

The mediator must disagree in a supportive way that will not offend; it is a special art. The goal is to encourage the party and counsel to reconsider and re-evaluate the case without taking offense. To say, “I disagree with you,” or, “You are wrong and will lose at trial” is too confrontational—it only puts the party on the defensive.

Alerting the party that there may be problems with the case can be done in several ways. The mediator might say, “Help me better understand your position, for I am struggling to grasp it,” or, “The other side has raised certain points that I cannot answer. Can you help me?” The mediator might even say, “I am deeply concerned about a certain issue which, if lost at trial, will cost us the verdict.”

The mediator must consciously avoid crossing the line and being confrontational. Timing can be important in this regard. To suggest problems with the case too early in the mediation might be interpreted as lacking objectivity or not really understanding the party’s position. To raise the concerns later in the mediation, after the mediator has demonstrated that she has worked the case and sought answers, is less threatening.

As noted previously, there is a line between the parties. When the mediator is going to raise difficult questions with one of the parties, she must be certain she is on that party’s side of the line. This may take several caucuses. However, the mediator should not raise the problems with the case until she is certain the party in question appreciates the support she is giving and the concern she has for the outcome of the case as it affects the party.[103]

Date: 2015-01-02; view: 687