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#MediationQuickTips: “I want to bring someone with me…” Issue 4

Mediation Quick Tips

Welcome to this ‘Mediation Quick Tips’ Newsletter Issue 4

This article covers the role of a support person, how a support person is chosen and the procedures involved for the inclusion of a support person in the mediation process. While some of the content of this article may also apply to expert advisors, I am only concentrating on support persons.

 It is divided into two sections:

  1. Mediation Quick Tips
  2. How to apply this Mediation Quick Tip 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 want to bring someone with me….’

Ensure you have guidelines and procedures in place should a mediation participant require a support person to facilitate them to give of their best during the mediation process.

2. How to apply this Mediation Quick Tip to practice

When a person requests that they would like to have a support person, the first thing I say is that this is, of course, perfectly ok. I then ask what is their needs will having a support person give them and quite often their reasons are met by my explaining my role as a mediator.

i.e. impartiality, maintaining a safe space for mediation participants, ensuring all mediation participants have the opportunity to say as much as they wish to say etc.

And if they still feel the need to have a support person then I will accept this as I know that a person who is feeling vulnerable and stressed will not be able to think clearly.

Amygdala glucose

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.

As a result our capacity to think clearly is compromised. 

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.
Deck chairs beach

Placement of support person in the mediation room

Sitting side by side on a beach is not quite the atmosphere we are trying to portray in mediation – but the placing of the people in the mediation room is an important factor to consider:

a) If a table is used then the mediator, who is sitting at the top of the table, needs to have the mediation participants sitting on either side of her with the support persons on the other side of each mediation participant.

b) If the chairs are in a circle, then I place the support person behind the mediation participant and slightly to one side of them. And I place them in a way that they will not have direct eye contact with the other mediation participant.

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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