What happens in mediation discussed 2 - Opening Statement

The previous blog entry began explaining what typically happens at my mediations. I left where we are in joint session and each participant in a dispute is asked to make an “opening statement”. Take a workplace dispute which involves one employee hitting another employee in a one sided fight in the workplace. One approach that I could take is to ask “why are you here and what is it you hope to accomplish in this mediation”? This might be ok, even necessary, if no preparatory work has been done and I don’t already know why the parties are there and what they hope to accomplish. If we did preparatory work then what’s the point in acting as if I didn’t? So what’s the alternative?

When considering Victim’s case he has many choices as to what he wants to say, individually or in combination, between:
I’m hurt, I’m confused, I don’t know why you attacked me, you hurt me and now I require on-going medical attention, I need to be compensated for the damage you inflicted on me and my future medical expenses, I want you to resign from this organization, I want to know I will be safe in the workplace, I want you fired, I don’t want you coming near me either in the workplace or in the community, I want us to be able to continue working at the same place (with caveats).

In preparation for making an opening statement I want each person in a dispute to work with me in identifying and focusing on their issues and needs. I want them to prioritize. Look a few steps ahead as to where they want to go in mediation. I’m not asking them to be a chess player – to see all the way through their end game. What good does it do me as their mediator? I don’t like surprises like – after hours of work “I’m not here to negotiate just to do discovery” – or – “I’m here only because the court ordered me here so I have to go through this.”

As your mediator my challenge is to elicit each persons issues and needs. Even though they may be very different between disputants issues and needs are critical in establishing common ground as well as gaps and disconnects which must be bridged in a march towards resolution. My job is to provide all participants in mediation with an opportunity to accept the challenge of entering into mediation collaboratively with a problem solving mindset.

So what would be an example of an issue and needs based opening statement in the above case assuming Victim wants to understand why he was attacked followed by concerns about personal safety should they both return to work. The attacker is remorseful, and wants the victim to understand what was behind the attack.

One possibility:

“As a result of your attack I have suffered ear damage – a broken ear drum. Although it is reparable I have hearing loss. I am still traumatized by the incident and never want to go through something like this again. I need to understand why you attacked me (challenge). I want an apology (challenge). I want assurances this will never happen again (challenge). I am not sure I can trust you and so I need to have reasons why I should trust you (challenge).”

Aggressor statement:
“I had a lot of things going on. This does not excuse my behavior. I want to explain what happened. I can’t tell you at this time that everything will be resolved in this meeting (mutual challenge, but rather general). I do want to bring this incident to closure so I will work with you to see what we can do (challenge- let’s work collaboratively).”

First, I look to see whether there’s a wow moment, something dramatic, unusual but sometimes it happens. Gaps and disconnects are the norm otherwise they would not be in mediation. Sometimes gaps seem like insurmountable chasms.

In this case Victim starts by informing the Aggressor about the damage he created. From here his priority runs down a line of trying to understand why he was attacked, apology, personal safety concerns, and the role of trust in working collaboratively towards resolution.

Aggressor starts with a statement that there were circumstances involved which, although they do not excuse his behavior, he believes are relevant to the incident and wants to explain. He does not assert that resolution can be achieved but he states he will work collaboratively.

The common ground between the parties starts with a willingness to work collaboratively (if we can reach a reasonable level of trust). There are indications an explanation and discussion about what happened is forthcoming. However, there are disconnects. Victim wants an apology – and although aggressor acknowledges his behavior is wrong he does not offer to apologize. Victim wants to understand why the attack occurred. Victim voices concerns about trust – Aggressor talks in terms of not being sure resolution can result through mediation.

Can you see the difference between an issues and needs statement versus answers to “why are you here?” “what do you hope to accomplish?” It’s an answer that at times better suites the needs of a mediator who hasn’t conducted preparation than it does the clients.

Collaboration, even adversarial collaboration, once established works best for me when there are issues and needs not only identified but laid bare in an opening statement.

We’ll continue this discussion in the next blog entry.