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A Flexible Mediation Approach

A Flexible Mediation Approach

Why do you think it’s important for mediators to be flexible in their approach?



Full Transcript

So I think we’ve got to carry this big sort of Santa Claus satchel into the room of all of our tools and then we’ve got to decide which of them are appropriate in a certain situation. As we mediators know, some days end with everybody hugging and crying and apologizing and other days end with people muttering under their breath and storming out of the room because they’ve got to compromise. They went through a difficult process. Hopefully not too many of them end that way but in some settings, in some kinds of cases, that’s the best we’re going to do.


So I think we have to bring the tools that meet the parties’ needs and I think we, as mediators, have a responsibility to those people we’re mediating for to go and build those various skill sets, whether it’s in, you mentioned Ken before, I think everybody should study with Ken. I think every mediator should have a little bit of Ken Cloak in their portfolio. I’m hoping that every mediator should have a little bit of impasse as a fallacy and heavy metal mediation in their portfolio.


You mentioned Erica Fox at the top. Erica, talking to her last night, Erica does amazingly beautifully where she says, ‘We’re these caring, empathetic human beings and we’re these logical, linear and critical thinking minds.’ So often, instead of figuring out how to marry those and walk into the room unified and help other people do that too by our presence and being that way when we walk in the room, if we just bring our brain into the room and leave the human part of ourselves outside of the room, we’re leaving half of our toolset outside, if not more, because we’re leaving the synergy that’s created by joining those together.


We mediators have to do that work, I think, on ourselves so that we can be the most efficient and be prepared when the parties say, ‘Tell her what you think,’ or the parties say, ‘I don’t care what you think. We have to be able to adapt to that.’ You used that word earlier and it’s one of my favorites because I think every mediator has to have an adaptive style rather than an evaluative or facilitative style. We have to be adaptive and skilled in the entire 360 degrees of skills so that we can bring what they need in that moment.


Is there anything wrong with the mediator who’s full of their own ego, who walks in the room and says, ‘I’m going to settle this case because that’s what you’re paying me for and that’s what I do,’ and is all self-oriented, if that helps them get it resolved by leading with that strong hand, I don’t know that that’s a bad thing.


It’s not how I would want to approach it but it works and there are days that I don’t get picked for a case and that mediator does because the people see that that’s what they need in that case, I hope. When they can see an ingredient that they can be happy with, that’s the ultimate goal that we have. As I mentioned, some days, it’s beautiful. Some days, they do hug and cry and apologize and reunite and all of those things. Other days, it’s not just whether they can enjoy. Some days it’s getting an agreement they can swallow and keep down. Where we set that definition of success, really has to come from them.


Some of them will say to us at 9:00 in the morning, ‘I don’t ever want to hear that person’s name again. It needs to end today,’ or, ‘I can’t afford this litigation. We’re out to engage a bunch of experts and do depositions and all of that and I really need it to end today. Others will say, ‘I miss them in my life and I want to see if through this process we can reunite.’ But they have to set that finish line for us and then we have to use our bag of tools to help them get there the best way that we can. That’s how I look at it.

About the mediator

Lee Jay Berman Profile Pic

Lee Jay began as a full-time mediator and trainer over 18 years ago, and has successfully mediated over 1,700 matters. He is a national panelist with the American Arbitration Association, a Distinguished Fellow with the International Academy of Mediators, internationally certified by the IMI, and a Dispute Resolution Expert with the United Nations Development Programme. In 2008, Lee Jay founded the American Institute of Mediation offering “W... View Mediator