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#MediationQuickTips: “I don’t want to go to mediation!” Issue 3

Mediation Quick Tips

Welcome to this ‘Mediation Quick Tips’ Newsletter Issue 3

This article focuses on the need to empower disputants so that they can make logical decisions about engaging in mediation, or not, rather than decisions that are influenced by their emotions. My goal is not to persuade parties to engage in a mediation process, which I see as being counter-productive and not in line with the mediation principle of voluntariness, but to facilitate them to think through their options on a logical level.

 It is divided into three sections:

  1. Mediation Quick Tips
  2. Theory behind the Quick Tips
  3. How to apply this theory to practice
Next O’Sullivan Solutions online advanced mediation courses:

March 6, 7, 13, 14, 2024

September 19, 20, 26, 27, 2024

Irish Standard Time: / GMT: 1.30pm -5.30pm
Eastern Standard Time: 8.30am – 12.30pm
Pacific Standard Time: 5.30am – 9.30am 

1. Mediation Quick Tips

I don’t want to go to mediation!

Listen to and empower the parties so that their fear of engaging in a mediation process does not inhibit their rational thinking.  Ensure that the parties know that the process is voluntary.

  • Work on the basis that your own role as a mediator at this stage is not to try to ‘get them into mediation’, but to talk them through the process so they can make their own decisions as to whether to engage, or not. Your body language and your words and actions need to convey this role to parties.  Your inner thinking and your words and actions need to be congruent.
  • Let them know that they can leave the process, without question, at any time, even if it is 5 minutes prior to the first private meeting or 5 minutes before the joint meeting or during the joint meeting.
  • Let them know that if they should choose to leave, that you would like to have a quick meeting with them, not so you can persuade them to stay, but only to facilitate their own teasing out of the advantages and disadvantages of remaining/leaving the process. This is to ensure that they make a logical and informed self-determining decision.
  • If they still decide to not engage then your complete acceptance of their decision means you will have employed the mediation principles of voluntariness, self-determination, impartiality and respect.

2. Theory behind Mediation Quick Tips

But mediation is good for you ...

From the previous newsletter edition you will have seen that when a negative social stimulus that results in us feeling threatened is received, the first assessment of this stimulus is done by the amygdala. If the amygdala is activated by a perception of a threat this draws resources of oxygen and glucose from the frontal brain which is then left without the necessary resources for us to perform cognitive thinking and function effectively at a rational level.  This is called an amygdala hijack.

Amygdala glucose

As a result, our capacity to think clearly is inhibited until our sense of threat has subsided.  

When you are working with a party who does not wish to engage in mediation then what you say and do needs to not result in an inner sense of threat for them. Your body language needs to be respectful and consultative and give them power over their decisions.

3. How to apply this theory to practice?

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.  

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Next O’Sullivan Solutions online advanced mediation courses:

March 6, 7, 13, 14, 2024

September 19, 20, 26, 27, 2024

Irish Standard Time: / GMT: 1.30pm -5.30pm
Eastern Standard Time: 8.30am – 12.30pm
Pacific Standard Time: 5.30am – 9.30am