By: Adriana Sánchez Correa
“Good morning to all of you, I am your mediator for the day. And this is Adriana our Fellow.”- I remember those usual words of introduction at the beginning of every mediation I was lucky to observe. Those words immediately created a mindset where I kept shooting questions to myself: Okay, these are the Plaintiffs – what are they looking for? Interests? What did the mediator mention about the strengths and weaknesses in the case? Oh gosh, I should have read that other case law! The list of questions and answers kept growing even when I was back home ready to go to bed, and even the following day while I cleaned dishes - Oh, I forgot to ask the mediator why he had asked that question and used that specific language.
What a great experience that year as TMG´s Fellow! I was able to observe different neutrals apply their different styles and set of skills to handle a mediation. Of course, being able to participate in monthly Peer Group Supervisions was the cherry on top of the sundae. These meetings allowed experienced mediators –all from completely different backgrounds– the opportunity to discuss specific situations of their professional lives and offer solutions to difficult issues. It was very enriching to see how one situation can be approached in a multidisciplinary way.
Let me tell you about the first mediation I ever observed. It was biblical. I entered the room and see a big round table ready to be surrounded by the parties and the mediator. The latter eventually initiates the ritual by sharing with the parties what the process entails and setting the ground rules for the day. Then, each team goes into one room and waits for the mediator and the Fellow -as his shadow or sidekick, like I was once told heartily- to meet them and have a conversation in private.
It is impressive to see the attitude of certain parties, probably the ones participating in this process for the first time. They see the mediator as a supreme figure who will resolve their issues. Luckily, by the end of the mediation, one thing will be clear: the mediator controlled the process but the parties did all the hard work. That hard work always exists, even if the parties do not reach a settlement agreement. The fact that the parties were able to actually sit and have an open and difficult conversation, evaluate their own case and explore options, were willing to compromise, pushed themselves to try to understand the other side and make an informed decision is proof enough of that tremendous effort.
Observing the mediators interact with the parties during the mediations and handle specific situations made me question if I would ever be able to do the same. Well, the truth is that the only way to find out is by actually doing it. Sometimes I would ask the mediators why they had handled the situation in such a way or why they had phrased a specific question, and the answer was that they were following their instinct. I hope that preparation, training, exposure, practice and Peer Group meetings will give me the experience I need to be able to say at some point: I am following my gut.
Here are a few TIPS that I learned as a sidekick and hope to share with those interested:
1. Carefully check for conflict of interests with the parties and/or attorneys.
2. Make timelines of the information you receive from the parties. It will help you keep track during the caucuses.
3. Be aware of your body language. You never know how the parties will react.
4. Time management is a MUST.
5. Summarize, summarize, and summarize what parties are saying. It is a way of following the information, interests and positions. Do not worry if you get something wrong – parties will correct you.
6. Never assume. It is better to ask questions even if you think the answer is an obvious one. You will be surprised by some responses.
7. Be careful with the confidential information you are not allowed to share with the other side.
8. Be on top of the clock during private caucuses. When you return to meet with the other party remember to explain why it took so little/long to come back. It is a way to protect the trust between mediator and parties.
9. Mediation is not about getting the case settled. What truly matters is for the parties to have the opportunity to make an informed decision even if it means saying NO to an offer or stepping away from the mediation. It is all about what is in the best interest of the parties.
10. Never think a case will or will not get settled. Your job is to focus on offering a space to have an open conversation and facilitating that conversation.
11. You will never know all the details of a case and sometimes you will never know the true whole story.
12. No matter what the outcome of the mediation is, make a follow-up call or send an e-mail. It shows that you are invested in the case and in the parties.
13. There are moments when you have to accept that parties are stuck and that there is nothing else you can do. Do not feel bad, it is not about you. Let go!!
Please help me make this list longer and better. All comments are welcome and appreciated.
I am describing mostly my experience observing Civil Mediations.