Ten Major Mediating Mistakes and How to Avoid Them
In the heat of battle, keeping your cool and doing everything right is often very challenging. You’re going to make mistakes — everyone does. Hopefully, however, you can learn from other people’s mistakes instead of repeating them. Here are ten of the worst mistakes you can possibly make as a mediator so that you’re less likely to step on these mines yourself.
Arguing and judging
The worst trap any mediator can fall into is making a judgment about the truth or falsity of either party’s recitation of the facts or about the bona fides of either party’s legal position. This is particularly true of litigated disputes.
Arguing with an attorney is like raising your voice to communicate with someone who’s deaf. No matter how hard you try, you’re never on the same channel, particularly because the attorney always knows far more about the facts and laws of his own case than you do.
Delaying the opening offer
Some mediators spend so much time talking with the parties about their opinions and positions that they don’t leave enough time to start and complete the negotiation “dance.” The purpose of a distributive negotiation — to distribute the deal’s value between the parties — is to help the parties believe that they received the best deal possible.
Wallowing in pessimism
The mediator’s job is to remain hopeful and encouraging throughout the mediation. The parties need you to be a coach and a cheerleader to help them move through the negotiation without giving in to the hopelessness that brought them to your door. You also help them not to demonize their bargaining partner; rarely is one party completely evil and the other completely good.
Sidelining the parties
Mediators who are judges and lawyers aren’t often used to dealing with the emotions raised by people in conflict. The process of litigation and trial is designed to take as much emotion out of the dispute as possible.
The rules of evidence permit a party to exclude information that may cause jury members to become emotionally involved in the matter they’re being asked to decide. The parties in court proceedings don’t talk to each other and often don’t even look at each other. They address the judge or the jury, and their behavior is constrained by rules of the court that keep emotion out of the proceedings.
Ignoring the justice issues
Fifty million years ago, the human species separated from the species that gave rise to both modern-day humans and today’s capuchin monkeys. When Yale scientists created a “monkey economy” to study the way primates think, they found that the capuchin refused to work if it observed a nonworking monkey nearby getting five times the “pay” (in cucumbers and grapes). The monkeys would scream, jump up and down in their cages, throw all their food back at their captors, and go hungry rather than work under such unjust conditions.
Bargaining in the nano- and stratospheres
When the parties make ridiculously high demands or miniscule offers, the conflict between them escalates and creates an even greater degree of bitterness and distrust than already existed. The parties and their attorneys have many reasons for bargaining in the nano- and stratospheres. The case won’t likely settle in either of those ranges, thereby protecting all parties from making a negotiation error.
In other cases, the parties want to express their anger by making offers or demands that they know are insulting.
Cutting the baby in half
I’ve heard more than one party to a dispute say, “Any moron can subtract $X from $Y and divide that number in half. I need a principled reason to settle, not an arbitrary one.” That pretty well sums up the entire reason the parties resist settling their dispute by dividing the delta between them.
This is also why the parties often refuse to make a concession, even when they agree to settle on the suggested number; they’re afraid they’re moving into territory where the mediator will suggest that the parties split the baby.
Telling the parties that their concerns aren’t relevant to the resolution
Nothing a party to a dispute says is irrelevant to its settlement. If a disputant says the moon is made of green cheese, he’s trying to express a feeling or state a fact that stands in the way of his reaching resolution.
When lawyers and judges become mediators, they often tell the parties that their concerns are irrelevant because the law doesn’t consider them pertinent to the legal resolution of a legal claim. But mediation is outside the legal process. You’re involved in a negotiation where the law, while informative, doesn’t restrict the resolution options available to the parties.
Failing to master your own emotional responses to conflict
People don’t want to sit across a conference table from someone they consider their nemesis, because doing so opens them to the possibility of being shamed — the most powerful constellation of emotions known to humankind.
In the midst of all the emotion — anger, fear, shame, and even rage — one person is required to hold the center, maintain a calm demeanor, and help the parties withstand the powerful emotional responses they feel and are subjected to from the other party. That person, of course, is you.
Breaching confidentiality with a wink and a nod
The parties, who don’t care a bit about your obligation to maintain confidentiality, will do everything in their power to wring confidential information out of you. Don’t fall for these traps.
Even if you’re conducting the mediation in separate caucuses, the parties do talk to each other, and if you breach confidentiality, one party may disclose your breach to the other while they’re in court together a few weeks hence. That’s the punishment angle to convince you to maintain confidentiality.
There’s also the ethical angle that every mediator must observe confidentiality or the profession itself will be weakened as being corrupt. You’ve pledged to maintain confidentiality and promised it to the parties to encourage them to be more open about their negotiation strategy than they would otherwise be. If you betray them, you betray yourself and your profession. For everyone’s sake, please don’t do it.
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accomplishment resume
A variation of the hybrid resume that includes qualifications and accomplishments.
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Americans with Disabilities Act; ADA
A document signed into law that makes it illegal for an employer to discriminate against (or refuse to hire) a person simply because that person has one or more disabilities.
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applicant tracking system
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behavior-based interview
A type of job interview in which candidates are asked what kinds of behaviors they have used in the past to handle certain situations and solve problems.
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blog
A Web-based journal that is written and updated by one or more blog writers, or bloggers. Today's more sophisticated versions read like media stories and columns.
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branding statement
A marketing tool for job seekers consisting of a brief statement that communicates who you are in the workplace; typically used in resumes and job interviews. Also sometimes called a branding brief.
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broadcast letters
Self-marketing letters that a job seeker sends to a large but carefully targeted list of potential employers. These letters are designed to uncover an opportunity in the hidden (unadvertised) job market.
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career management documents
A family of job letters that are self-marketing tools for people who want to be hired for the best jobs. Includes job ad reply letters, broadcast and prospecting letters, resume letters, follow-up letters, and e-mail cover notes.
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competency-based approach
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core resume
A starting resume that you use as a base or template to spin off targeted versions of your resume (for specific positions) when you must move quickly.
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cover letter
A self-marketing document designed to sell yourself and get an interview for a specific job; typically accompanies a resume.
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credit histories; consumer reports
Reports that contain your payment history to creditors. These reports may also include names of previous employers, residential stability data, divorce information, and estimated prior earnings.
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directive interview
A type of job interview in which the interviewer maintains complete control and walks you through the discussion to uncover what he or she wants to know.
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EEOC
Equal Employment Opportunity Commission. The EEOC is a U.S. federal agency that investigates discrimination complaints.
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e-mail cover note
An e-mail message that introduces a resume that you distribute online. Typically, a shortened and more informal version of a cover letter.
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e-resumes
Electronic resumes. Resumes that you distribute online.
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font
A complete character set comprised of a single size and typeface, such as 12-point Helvetica.
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font size
The height of the characters in a font set, measured in points, such as 10-point or 14-point. One point is equal to 1/72 of an inch.
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foundation skills
A skills language used in cover letters to communicate your expertise in fundamental job skills — includes basic skills, people skills, thinking skills, and personal qualities.
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functional resume
A resume format that focuses on portable skills or functional areas and ignores chronological order. This resume format works well for career changers, new graduates, ex-military personnel, work-history gaps, or special-issue problems.
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hybrid resume
A resume format that is a combination of the reverse chronological resume format and the functional resume format.
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instant messaging; IM
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integrity test
A test administered by a potential employer during the interviewing process that rates honesty, responsibility, and reliability for the job.
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intellectual property
Work samples that you submit to a potential employer during the job interview process, such as portfolios, project materials, and proposals.
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international curriculum vitae resume
An excruciatingly detailed resume format used to apply for international jobs. This resume style is typically six to eight pages long and often uses the reverse chronological format.
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job ad reply letter
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job board
A Web site that posts general or specialized job listings, such as CareerBuilder.com and Monster.com.
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keyword resume
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keywords
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linear resume
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marketing pitch
A personal commercial that you create to sell yourself during a job search. A marketing pitch should be about one to two minutes long.
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nondirective interview
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OFCCP
Office of Federal Contract Compliance Programs. The OFCCP is an agency that tracks the diversity hiring record of those applying for positions with federal contractors.
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online executive bio
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online profile
A lengthy multi-link document that appears on Internet networking and career sites such as LinkedIn.com and VisualCV.com.
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online referral service
An e-mail job distribution method paid for by employers. This service helps you identify which of your contacts may know people at companies where you would like to work.
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online screening program
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patterned interview
A type of job interview (also called a structured interview) in which the interviewer works from a written list of questions asked of all candidates and writes down your responses.
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personality test
A test administered by a potential employer during the interviewing process that measures choice, preference, values, behavior, decisions, attitudes, and job-related interests.
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podcast
A digital audio or video file that is available for downloading from a Web site. Usually available in a series that is often packaged like a daily newscast or commentary.
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podcasting
The process of creating and distributing audio and video feeds over the Internet. To make a podcast, you need a computer, microphone, Internet access, and recording software.
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portfolio
A collection of work samples often delivered as part of the job interview process for those in fields such as design, graphics, photography, architecture, advertising, public relations, marketing, education, and contracting.
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professional resume
A resume format that emphasizes professional qualifications and activities and is typically three to five pages long. This format is essentially a shortened version of the academic curriculum vitae resume format.
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prospecting letters
Self-marketing letters that a job seeker sends to a relatively small and select number of potential employers. These letters are designed to uncover an opportunity in the hidden (unadvertised) job market.
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recruiter; headhunter
An employers’ personal shopper, tasked with going into the marketplace and bringing back the best qualified candidates for the thriftiest prices.
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resume blasting services
A service that advertises their willingness to save you time and trouble by “blasting” your resume to thousands of recruiters and hiring managers all over the Internet — for a fee. These services are generally not recommended due to privacy and identity theft concerns.
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resume letter
A self-marketing document that combines a cover letter with a resume (the resume is not a separate document). This type of letter is typically two pages long, but can be one page.
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reverse chronological resume
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screener
An employee (typically an administrative assistant or HR specialist) who monitors phone calls for a company when you call their main telephone line.
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screening interview
A first-cut job interview that is used to weed out all applicants except those who are best qualified for the position.
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selection interview
A job interview in which you meet with a supervisor, department head, or another person who has the authority to hire you.
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SEO
An acronym for Search Engine Optimization. SEO is a method of using technical and strategic maneuvers to increase the traffic driven by search engines to a Web site.
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serial interview
A type of job interview in which you are typically passed from the initial screener to a line manager to a top manager — and perhaps a half-dozen people in between.
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social networking services
Web-based services — including discussion groups, message boards, e-mail, and blogs — that give users a way to find and interact with people who have similar interests. Some of this interactivity focuses on job search and recruiting.
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spiders
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stress interview
A type of job interview in which the interviewer intentionally uses various intimidation tactics to attempt to put pressure on you.
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targeted resume
A resume that is customized for a specific employment goal or position in a job search.
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typeface
A specific family of fonts in a similar design style (including multiple sizes of that font), such as Arial or Times New Roman.
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vertical job search engines
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video resume
A canned video interview in which a candidate speaks about his or her qualifications, goals, and strengths; sometimes called a video podcast.
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watermark
A faint image ingrained in quality-stock paper. Resumes are commonly printed on paper stock that includes a watermark.
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Web 2.0
The second generation of Web design that uses sites in which people communicate and share information. Web 2.0 tools include blogs, instant messaging, podcasts, RSS feeds, and social networking services.
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Web resume
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