Tuesday, February 13

Cold Case

In her recent interesting posts Mediation Follow Through… Extremes and Should family mediators follow through? Kristina Haymes raises the vexed question of how far do we mediators go to settle a case after an unsuccessful mediation?

If it doesn't settle on the day, do you;

>leave it where it lies?
>arrange to reconvene the mediation before the parties leave the room?
>touch base the next day/the next week/a year later to see if, having slept on it, there are any second thoughts?

...or something else? And do you charge for it?

A while back I took an unscientific survey of what my colleagues at the International Academy of Mediators and Prof. John Wade of Bond University, Queensland, Australia do when they can't get there on the day.

In my article that came out of the survey, I Know It’s Not My Problem : But It Happened On My Watch! someone left an insightful comment, even if it was a little cutting;

"...You have raised a very interesting point. How far do mediators go and what drives them - their own ego and resolution rates or what the clients actually want??"

From my survey some general themes emerged;

The Persist Until Something Happens principle…. many colleagues surprised me with their tales of perseverance. Some were contacting parties up to a year after the mediation had concluded and talked of giving counsel a “window’ to again discuss the matter with the client as well as an excuse to contact their opposite number.

Email is used heavily in this area – its cheap, non-intrusive and avoids telephone tag. It also shows the mediator to be interested but leaves the initiative with counsel to get the mediator back in.

Email provides an ability to craft a well-timed note and avoid ill-considered communications that may be abused by one party or the other in subsequent judicial proceedings.

But keep yourself safe. Do this by covering the basics like recording that the email remains part of the mediation process and that it is confidential to the parties.

‘We are done but we are not finished’
Mediators are adjourning mediations but not terminating them. By leaving the door ajar the parties have a way back into the room that avoids anyone having to be seen as initiating a restart.

Many of us are finding that perseverance is a great look for a mediator and that it is valued by our clients right up there with the patience, persistence and optimism that we showed them during the session itself.

Two sorts of interventions
There seem to be two categories of interventions that experienced mediators use when the parties remain in dispute after mediation;

1. the first is, interventions usually tried by the mediator at the end of the mediation session itself, and

2. the second type is the ‘morning after’ variety.

Examples of both types of interventions are offered here.

You might also like to take a look at John Wade's article and his suggestion that a written follow-up turns a ‘failed’ negotiation session into a perception of (painful) progress and provides a clear document to reflect upon rather than conflicting memories of tense spoken words.

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