The Negotiator Magazine

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               The mediator also holds the role of “timekeeper”.  This means that the mediator may force the parties to close the negotiations at a certain point, or call it an impasse.  This is also a risk the mediator takes.  It is likewise a key tool to being the effective broker which the parties need.  Oftentimes in protracted negotiation, the hardest part begins when the parties presume to memorialize the agreements they’ve made.  After eight hours of negotiation in an employment litigation matter, it is often another two hours negotiating a one-page agreement to settle.  Some of this is because the parties are simply not ready to “disconnect” from one another.  In the example of a long-time employment situation, or a marriage, or even neighbors, the parties final “severance” of the dispute takes time.  For this reason, the mediator needs to be both sensitive, on the one hand, and firm on the other to allow the parties to save face and move forward towards a new reality beyond the protracted conflict.
               Ambassador Ross took a step further and suggested the parties “test” their conviction, by making announcements to the public of their intent.  In this way, both Palestinians and Israeli’s had the opportunity not only to gain public approval, but to make a very public commitment to one another to pursue the peace process they had undertaken privately up until that point.
               Finally, the Mediator gains her power by the sheer willingness to listen, to question, to probe, to offer respect to disparate views, and to make an earnest attempt to understand the basis for each side’s position.  In this way, a parent, for example, can step in to attempt to equalize the power between an older and a younger child.  An employer can direct his supervisor to treat his workers more fairly.  Simply by listening, and appreciating the weaker/less represented individual or group, the mediator can begin to re-balance by speaking on their behalf, or listening to their pleas and relating them to the other, who often has not heard them directly or indirectly until that time.
               The power of listening, also lies in the trained ear to probe, to discern subtle cues, to dig beneath the surface in order to understand, and later communicate the roots of the problem.  As in emotional or psychological therapy, it is often only when the deep roots of the conflict are understood that the solution becomes apparent.  For this reason, the Mediator gains power from an apparent surrender of his own agenda.  Instead, the Mediator is well-served by taking a step back and inviting the disputant to “[h]elp me to help you.  What are your needs here?”  This type of rhetorical questioning serves to demonstrate the true objectives of the parties as well as the mediator’s appreciation for the unique perspective of each side of the conflict.
The real power, then, comes, not from the active engagement in what we think of as “mediation”, but in the silence that comes with patient listening, thoughtful consideration, and optimism for a different future.  The perspective we are able to offer as the “third side” is no more than the mirror of the perspective of each side to the other.  With creativity and determination, the mediator can achieve all three goals:  to prevent violence or conflict from escalating, to resolve the actual conflict presented, and to contain the violence or dispute so that peace and resolution will be lasting.

Jan Frankel Schau Photo

Jan Frankel Schau, is an Attorney Mediator in Encino, California.  She can be reached for comment at:  jfschau@valleymediationservices.com

 

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May 2007