Gerry O'Sullivan

Having a support person can result in the mediation participant feeling more safe and less stressed so that they are able to give their best during the mediation discussions, option development, reality testing of the options and before signing the settlement agreement.

While in separate private meetings, and between sessions, the role of the support person is to be a sounding board for the mediation participant to facilitate them to clarify their thinking. They can play an influential role during private separate meetings, particularly to take the mediation participant through the advantages or disadvantages of the options for settlement.

Procedures for choosing a support person

• Either both parties or just one mediation participant can request to have a support person with them for the mediation process.
• Any mediation participant who requests to bring a support person needs to convey who the support person is, what they work at, where they work and the geographical area from which they come/ in which they live. This is then sent to the other mediation participant and helps in their identification of any conflict of interest.
• The named support person for one mediation participant needs to be agreed by the other mediation participant. If that other mediation participant finds that there is a conflict of interest, or if the other mediation participant is uncomfortable with this particular support person, then they have the right to say no to this particular person. Should this happen then the mediation participant who requested a support person can propose a different support person.
• With all of the above it is important to keep in mind that mediation is voluntary and that if either mediation participant chooses to not engage because a support person is requested by the other mediation participant, then this is permissible. Their right to have a support person, as well as their right to withdraw from the mediation process is stated in the terms of the Agreement to Mediate.
• It is not always helpful that a spouse or partner becomes the support person as they are often quite emotionally involved in the dispute. Should they become positional or if they display their anger through their demeanour, then this is not helpful for a process that is based on reaching a collaborative solution.

I have noticed that if a support person is emotionally involved, they may hold back the person they are supporting from moving towards collaboration. This is particularly true when the mediation participants have both identified and discussed their underlying interests, but the support person, for obvious reasons, has not had their underlying interests identified and discussed and is still operating at an emotional level.

I would welcome any comments, from your experiences, from readers on this topic.

The role of the support person

• The support person supports the mediation participant so that they can give their best to the mediation process.  
• While the role of the support person in mediation is to provide support, it is not to negotiate or to speak of the mediation participant during the joint meeting.
• During the joint mediation sessions, the support person needs to allow the parties to speak for themselves so that the parties have ownership of the process and take responsibility for reaching their own agreement. 
• The support person may check with the mediation participant that they understand the questions. They also have a role to play in supporting the mediation participant to answer questions fully to the best of their intention and capacity. 
• The support person can play an important role during private separate meetings, particularly if the mediation participant needs support during the option development and reality testing stage, and before agreeing the mediated agreement.

Guidelines and Procedures for the support person and the supported mediation participant

• The mediator needs to inform the support person of the focus of their role as well as its boundaries, and the guidelines and procedures that will be implemented.
• The support person needs to read and understand the ‘Agreement to Mediate’ and then sign that document at the start of the mediation process. They will be expected to keep complete confidentiality about what is said in the mediation process, and also about what is agreed at the end of the process. 
• The support person cannot speak on behalf of the mediation participant during a joint/plenary session other than to clarify for the mediation participant what is being said and indicate to the mediation participant they are supporting that they wish to have a private conversation outside the room. 
• The mediation participant may also ask for a private meeting with their support person during the joint session. They then have the option to include the mediator in their private meeting, or not. Should they decide not to include the mediator, then it is important that a mediator hears what decisions or actions are resulting from their private meeting discussions, before returning to facilitate the joint session again.
• If a support person takes notes during the mediation sessions, then these should be headline notes only as this is a confidential mediation process and is not a litigation process. All notes taken by the support person and the mediation participants will be given to the mediator at the end of the process and will be shredded and this needs to be conveyed to those concerned at the start of the session.

Remember the importance of the mediation principles of voluntariness and self-determination and ensure that the mediation party is aware that you champion these core principles through your body language and actions.

• The most important thing for a party to know is that they can leave the mediation process at any stage they wish, without needing to give any explanation as to their reasons for taking this step. Refer to: 1. Mediation Quick Tips at the start of this newsletter edition for the steps to apply in this process.

In my experience as a mediator, once a party knows they can leave the process before or during any of the mediation stages without giving a reason has, without exception, resulted in a party agreeing to engage in the process and subsequently to conclude the process with a settlement. 

 Facilitate them to voice their concerns or worries.

Ask the parties what are their main concerns about engaging in the mediation process?

• Listen intently to the words they use.
• Work with the thoughts inside their head, rather than with the thoughts inside your own head.
• Reflect back what they said, tentatively and gently with a questioning rather than a conclusive tone of voice.
• Ask simple questions so they stay on their thought track.

We need to allow a party to vent emotions before they can begin to think more cognitively and clearly and reach an informed conclusion, whatever that conclusion may be.

 Ask if they would like to hear more about the mediation process?

Ask for their permission to take them through the details, saying that this is not meant as a means of persuading them to take part in the process, but merely so they will have the information to help them reach their own decision.

Explain about the principles of mediation: Voluntariness, Impartiality/Multi-partiality, Confidentially and Self-determination.

Explain that they will be facilitated to set agreed ground rules as to how they will engage with each other during the process.

 In my own introduction to mediation participants, I also add these sentences to give them a sense of autonomy or control within the process: 

• ‘If either of you think I am not being impartial, please do let me know.’
• If any of you need a private, separate meeting during the process, please do let me know.’
• ‘If I interrupt you and if you think it was not appropriate, please do let me know.’
• ‘You do not need to respond to any of my questions if you do not wish to do so.’
• And remember mediation It is not about blame or trying to find out who is right or wrong, but about finding a way forward, without the problems of the past.
• You may leave whenever you wish without needing to give any explanation to the mediator or the other participants, if you do not wish to do so.’

Assure them that our role as mediators is to be multi-partial and to create a safe process for them. If needed, ask if they would like to bring a support person (different to an expert) with them to the mediation? The addition of a support person and the guidelines around it will be dealt with in more detail in another newsletter edition

 Conclusion

Listen to, inform and and empower the parties so that their fear of engaging in a mediation process does not inhibit their rational thinking and so that the decision they reach is an informed and well considered decision.