Ground Rules - a foundation for mediation

Our topic is mediation. Before proceeding further, about where we go from an opening statement in the process of mediation, covered in the previous bog entry, it is appropriate to back-up and discuss in detail ground rules and the role they play in mediation.

Drawing some parallels is a good start. At sea or on the water, in nautical terms we call them rules of the road. In soccer or football we call them rules of the game. In judicial terms we call them procedural rules. In mediation we apply the term ground rules. What are they and what purpose do they serve?


First let’s tell you what they are not. The biggest apparent difference between mediation and the examples used above is: in mediation there is no authority on the part of a mediator to impose a sanction for their violation – no fine, no ten yard penalty, no “you’re outta here”. A mediator relies on the cooperation of the parties and should they refuse his worst case recourse is to end a mediation.

Mediation is, to a very large degree, built on concepts of civility and respect by opponents for each other. By its nature, mediation is largely a collaborative process, problem solving, largely built on achieving or reconnecting mutual trust. Ground rules are meant to facilitate parties in collaborating and participating in problem solving.

We often start with a reminder that civility and respect are a basis for conduct of mediation. Mediations are more akin to business meetings then they are to a court room. Usually only parties and mediator are present. There’s no court clerk or armed sheriff present. Civility and respect is at times difficult to achieve and sustain where trust has been eroded or broken and emotions are running high. At times incivility and disrespect result in clients who are unable to participate or make progress in mediation.

And, unless and until a level of civility and respect are established they are better off utilizing an advocate and considering and using arbitration or litigation.

Since mediation sessions are often a three way communications it is important for the parties to have continuity and complete their statements. As a result mediators often remind clients “one speaker at a time and if you have a question write it down and ask it during your turn”. I was reminded that there are people, who for a variety of reasons, when interrupted, unable to complete the communication they are trying to make.

I find it difficult however, when one party is excessively long in making an uninterrupted statement or insists on reading lengthy statements. At times it is necessary to give them extra times at others they are being somewhat disrespectful of the other party. Consequently I find myself interrupting them myself. The listening party often has a time limit of how long they can keep focused on what is being said or the fairness of spending so much time by one party. Frustration results in such statements as “get to the point”, “tell him what you want”, or complaints about waste of time, unfairness, or worse. A persons need for time to make their points is a discussion with individual clients during preparation and accommodations are provided for in ground rules.

Coarse or foul language can also be problematic. Language can be offensive, personal in nature (name calling), and be so colorful as to actually mask critical communications. I discourage it to the degree both parties can agree.

Threatening verbal or body language can cause mediation to end quickly and if a threat is immediate, mediators are bound to react by ending mediation. A mediation setting has to be a safe setting for open dialogue and negotiation. There are no sheriff’s in a mediation setting.

In those situations where clients cannot share the same space during mediation a tool commonly used is to separate opponents to separate rooms and for mediators to shuttle between the parties. If emotions begin to run high during mediation mediators or clients can request separate sessions.

An agreement in advance, as a ground rule, to allow separate sessions to take place under such circumstances allows for choice and better prepares clients to sit by themselves while mediators are engaged with the other party. Also useful is a mechanism by which separate session do not become abuse of process by particularly verbose venting diatribes meant to derail dialogue. There are clients who need to vent or are compelled, or even find it necessary to use a lot of words to express themselves. However, this may make their opponents feel like they are being marginalized, the process unbalanced, or even unfair.

Confidentiality is of course a ground rule which, because of its importance, addressed separately and agreed to in writing. There are two elements to confidentiality. One is the confidentiality of what is said in mediation as well as agreement not to bring a mediator into litigation should a case proceed in this direction. The second element is the ability of a client to provide mediators information which is necessary for a mediator to understand but which they do not wish the other party to be privy to. As an example a client may wish to convey to a mediator something which is very personal in nature about their state of mind, health issue, or other personal predicament which is affecting their lives and impacting a case. They may not wish their opponent to be aware of a condition. Mediators are bound to keep such information confidential.

Partially because many mediators are not attorneys, as well as not to influence clients opinions, mediators are not permitted to offer legal advice in a case which they mediate. Likewise, clients need to understand that should they ask for advice, this request will be gently turned away. This is not to say that at times there are close calls between mediator suggestions and advice. The difference is that advice is specific to a question wherein a mediator suggestion is meant to be a search for alternatives for clients to consider. As an example of a request for advice might have to do with a clients query about the legal merits of their case? A mediator cannot offer his opinion in response to this question. However, there is a process of evaluative mediation in which a mediator is engaged to conduct an evaluation for clients. We are not dealing with evaluative mediation in this blog entry. As an example of a mediator suggestion consider a case in which clients are stuck on an issue, say on the amount of money to be exchanged in a transaction. A mediator may offer a suggestion to clients which bridges their difference. There are many variations on this theme which I plan to address separately.

There are many other examples, needs, and uses of ground rules which can apply to specific cases. The basic principle behind ground rules is to provide a reasonable set of boundaries which assist clients in understanding and agreeing to a process meant to encourage openness, fairness, safety, civility, respect and dignity. At times just hitting the right types of ground rules are by themselves a breakthrough for clients for whom communications have become the wild, wild West of times past.

And by the way, even though many clients don’t feel a need to pay any attention to the clothes they wear, their appearance, demeanor, or body language, these factors often play a significant factor in adding to or diminishing a mediation process. Particularly in multiple sessions, I’ve noted that clients tend to raise or change their standards based on progress in mediation.