How to Define and Summarize Problems in Mediation
Rarely does a mediated dispute revolve around a single problem. Ask one of the disputants to define the problem and you’ll likely hear a 15-minute rant about everything the other party did wrong — failed to uphold his end of the agreement; didn’t return phone calls or offer an explanation or apology; was consistently unreliable, rude, and disrespectful; and so on.
And that list represents only what the party can rattle off from the top of his head. This problem avalanche can make beginners and intermediate mediators feel overwhelmed. The parties don’t have a clear idea of how to solve their problems because they often can’t differentiate between their emotional response to a perceived slight and the conflict at the heart of the dispute.
So the first steps in problem-solving are to define and prioritize the problems while acknowledging and empathizing with all parties’ emotional reactions to the conflict itself. The following sections lead you through the process of helping the parties define and prioritize their mutual problems.
Engage the parties in storytelling
After the parties introduce themselves and exchange pleasantries, and after you review the ground rules for the mediation, have each complainant and thereafter each respondent tell her story in all its texture, dimension, and complexity. As each party relates her account of what led up to and caused the conflict, do the following:
Tune in to the nonverbal expressions of the parties who are listening. If they’re grimacing, shaking their heads, sighing loudly, or being disrespectful in any way, remind them of their agreement to listen respectfully without ridiculing or dismissing what the other person says.
After each person finishes telling her story, ask open-ended questions to fully flesh out and clarify her account. Give the other parties the opportunity to ask questions, as well, but discourage argument over details, reminding all parties that they’ll be entitled to tell their story in an atmosphere of mutual attention and respect.
Repeat the process for each party, allowing them to tell their version of events. If the parties are represented by attorneys, the attorneys often prohibit their clients from speaking and give the facts of the dispute themselves.
Because the parties describing the dispute themselves is so much more effective, consider discussing ways that the attorneys’ need to protect their clients can be met other than by sidelining them. Most attorneys feel comfortable with a question-and-answer process as long as they can object to their client answering any given question. You, of course, are the best person to lead a client through her story.
Summarize the narrative
After both parties tell their stories and answer questions, retell the story in your own words in a way that harmonizes the similarities and starkly contrasts the differences between the two accounts. As you retell the story, do the following:
Check back with the parties frequently to be sure you haven’t misstated or omitted anything.
Jot down problems as the parties identify them. Problems may be actual issues, differences of opinion over specific incidents, or unmet needs.
Write a list of problems on a white board or a large sheet of paper so both parties can see the list. Ask the parties whether you’ve omitted any problems, and add them to the list as directed by the parties.
Make sure the list is comprehensive. Otherwise, you may end up with a solution that fails to address a key issue, which often results in impasse or the parties’ entry into a grudging compromise that creates an unsustainable agreement.