Honing Essential Mediation Skills

• Author: Victoria Pynchon/Joe Kraynak (With)
• Profession: Mediator, author, speaker, negotiation trainer, consultant, and attorney with 25 years of experience in commercial litigation practice/Professional writer who has contributed to numerous For Dummies books
• Pages: 115-134

Chapter 7

Honing Essential Mediation Skills

In This Chapter

▶ Stressing the importance of confidentiality and neutrality

▶ Asking diagnostic questions to identify motivations

▶ Anchoring and reframing disputes

▶ Using different negotiation tactics

▶ Understanding different value systems

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ertain skills are essential to effective mediation. Above all else, you need

to maintain confidentiality and neutrality throughout the mediation pro-

cess, so the parties have confidence and trust in both you and the process. In

addition, you have to master certain techniques, including anchoring, fram-

ing, logrolling, and distributive bargaining. You also need to get in the habit

of answering questions with questions and know how to appeal to the par-

ties’ higher values. I deem all these essential mediation skills. This chapter

assists you in developing and sharpening these abilities.

Maintaining Confidentiality

in Separate Caucuses

When the parties are in a joint session, you don’t need to fret about keeping

track of the information you’re allowed to communicate among the parties,

because everyone speaks out in the open. In contrast, the more time you

spend in separate caucus, the more you risk damaging the parties’ percep-

tion of procedural fairness, calling into question your own neutrality, and

inadvertently breaching caucus confidentiality. To avoid breaching caucus

confidentiality, follow these suggestions:

✓ Tell the parties you don’t want to know what their true bottom lines are

so you don’t inadvertently reveal them to the other side.

✓ Never disclose what you believe to be the parties’ bargaining weak-

nesses or strengths based on what you discover in separate caucus.

116 Part II: Becoming a Master Mediator

✓ Never suggest that a party is willing to accept less or pay more than the

party currently has on the table.

✓ Never predict what the other party is willing to settle for.

✓ Never base a mediator’s proposal on confidential information the par-

ties provide in separate caucuses. Instead, use the parties’ most recent

offer and counteroffer.

✓ Never answer the question, “What’s the mood in the other room?” or

any other inquiry that calls on you to disclose or characterize what’s

going on in the other room.

Your credibility is one of your greatest assets in helping parties resolve a

dispute and in securing future business. If you disclose confidential informa-

tion to a party, she has every reason to suspect that you’re disclosing her

confidential information to the other party. As the old saying goes, “If he does

it with you, he’ll do it to you.” If either party loses trust in you, your ability

to resolve the dispute — and your reputation in the community — can be

severely compromised.

Confidentiality extends beyond the mediation. Though the parties may be free

to discuss the mediation and what they ultimately decided, as the mediator,

you need to remain mum or at least keep the parties’ identities under wraps.

Keeping a Neutral Position

Maintaining neutrality in the midst of conflict is essential in resolving disputes,

but you’re a human being, not a human Switzerland. You have feelings, opin-

ions, and prejudices that cause you to like one party better than another, can

impair your judgment, and may mislead you about the parties’ true intentions.

Being neutral doesn’t mean you have no opinions or feelings. It means you

have no stake in the outcome. Being neutral doesn’t require you to sup-

press conflict that may arise between you and your clients. It does, however,

demand that you don’t express opinions that favor one party over the other.

The following sections explain techniques to help you maintain neutrality.

Staying neutral in tough situations

When parties ask you for an assessment or your opinion, present you with

dubious facts or suppositions, or have a history of using your services, main-

taining neutrality is even more difficult than it usually is. Read on for sugges-

tions on how to stay neutral in these difficult situations.