Mediator Tips: Observations From The Front Lines

Jonathan Powell, a skillful negotiator from the United Kingdom, shares some useful tips to overcome frequent issues faced by mediators.

He focuses on four main aspects of mediation:

  • Building trust
  • Finding common interests
  • Avoiding threats
  • Listening clearly

He also finds that there are four areas of potential conflict:

  • Unforeseen or unintended bias
  • Issues when bonding with parties
  • Issues that arise between the parties and the counsel
  • A combination of all of them

First, unforeseen or unintended bias is something that can emerge before or during the mediation. For example, Powell refers to a mediation meeting that took over an hour with one of the parties, while the other party only met with him for 15 minutes. As a result of this, the party that spent the least amount of time with him thought that he was not interested in understanding their position and interests.

This occurred because an individual from the first meeting started talking about an unrelated topic and both the mediator and the party got dragged away by the conversation. To solve this issue, the mediator had to spend an equal amount of time with both parties and be very clear about the meeting objectives. Eventually, this brought the parties back to the table to discuss the matters that brought them there. Mediators should avoid falling prey to unrelated side-comments. They can be time-consuming and can foster additional unnecessary clash of opinions between the parties.

Making a connection

Second, when it comes to facilitating a settlement, a good practice that a mediator can have is to bond with the parties since it raises trust between the parties and the mediator. Spending time before the meeting allows the individuals to have a more personal connection outside of the mediation table. This way, the mediation will run more smoothly than if there was no previous interaction.

Having mediation meetings can be time-consuming and a good mediator should be aware of the time constraints that parties may have. There is also the question of when a mediation should take place. There is no right answer but there are different factors that should be considered by the mediator, such as pre-mediation preparation time and the amount of time to be spent in the actual mediation. As it was mentioned, parties could say that it is very difficult for them to meet and would restrict the amount of time for the mediation. In this regard, the mediator should be objective when agreeing with the terms established by the parties both ethically and professionally.

Getting on the same page

Third, another potential issue in mediation is problems with the counsel – both between the mediator and the counsel or even between the counsel and its client. To avoid this, it is important to meet them beforehand and try to get a good idea of their consolidated position. This will keep the counsel and client from developing diverging opinions and derailing the mediation. Another useful strategy to reduce the impact of inconsistent counsel is to keep a joint term sheet and confirm understandings with both sides after meetings.

Mediators have a very small window to achieve the objective of solving the situation at hand. It is important for the mediator to establish these relations of trust and respect early in the process so that there is already a channel of communication with the parties before the actual mediation begins. Additionally, working with the counsel is crucial as they are the ones that will probably bring their clients’ interests towards the path of resolution. In this regard, understanding the counsel and the parties is fundamental if a mediator wants to reach an agreement.

As such, the following tips have been proposed:

  • First, you must build trust between you and the parties to the mediation.
  • Second, find common interests that can facilitate the mediation process. In other words, bond with them.
  • Third, avoid dramatic threats coming from either side of the table.
  • And fourth, learn to listen and clearly identify the real issues that brought the people to the table.

Interview by Michael Valdivieso.

Jonathan Nicholas Powell is a British diplomat who served as the first Downing Street Chief of Staff, under British Prime Minister Tony Blair from 1997 to 2007. He was the only senior adviser to last the whole period of Blair’s leadership. During this period Powell was also the chief British negotiator on Northern Ireland.