F. Build a Team Concept

As the mediator works with counsel to develop a party’s case, she really becomes part of the team. She does not lose her neutrality as long as she is helping the other side equally. In this setting, the mediator can use the “we, our, and us” technique. Instead of asking, “How are you going to respond to a certain point made by the other side?,” the mediator might ask, “How are we going to respond?” Instead of asking, “What are your risks on this issue?,” the mediator might ask, “What are our risks?”

This personal team approach might seem artificial for some mediators; therefore, it should only be employed if the mediator feels comfortable with it. There is a caveat to doing this: the mediator must use the “we, our, and us” approach only with reference to the party with whom she is caucusing.

G. Using Nonconfrontational Language

The surest way for the mediator to create conflict and intransigence is to use confrontational language. To tell a lawyer or party they are wrong and will lose the case if they do not compromise is to put them on the defensive. Confrontational language undermines the mediator’s effort to build rapport and trust. It needs to be avoided.[104]

The peacemaker’s questions or statements are never challenging—they are supportive and show interest in the party and counsel. They should be asked with understanding, gentleness, and compassion. They should demonstrate that the mediator seeks to find a just resolution, fair to all concerned.

If the mediator wishes to discuss weaknesses in a party’s case, she will first ask what the strengths are. In this way, the party and counsel will be less threatened when the weaknesses are raised. Rather than directly ask, “What are the weaknesses in the case?,” the mediator might ask, “Are there any concerns or weaknesses in the case of which I should be aware?” This does not infer there are weaknesses, only that counsel is invited to discuss them if they do exist.

If a party refuses to discuss the weaknesses in her case in the first caucus, the mediator can raise them in the second caucus with the party by pointing out that the other side has made certain points, which “I could not answer. Can you help me frame a response?”

All questions asked should come across as being supportive even when they raise difficult issues. Other expressions a mediator might use to signal support and not criticism include phrases, such as, “Help me understand,” “If I understand what you are saying,” “I need to better understand your position on this difficult point,” and “If the other side raises a certain point, how can we answer it?”

Date: 2015-01-02; view: 789