SENSITIVE ISSUES AND CONTROVERSIAL TOPICS
In part one, I talked about different strategies to address the Elephant in the room. I gave you four tips: be your authentic self, have a learning conversation, caucus with the person, and tap into mediation or negotiation experts. This part will illustrate the strategies the mediator can use in a mediation context to address the Elephant.
An Elephant that lurks stalls the negotiations among the parties. That’s unfortunate because parties enter mediation voluntarily with the intent to resolve their matter. Without good rapport, the parties struggle to achieve a mutually satisfactory agreement. This stalemate holds despite the mediator’s presence in the room to facilitate discussions.
Let’s be candid. Even the mediator can struggle when the Elephant is towering over the participants making everyone uncomfortable. That’s why mediators need to be prepared.
Here are SIX ways to get in control of the Elephant:
First, reckon the Elephant is bad. Deal with the Elephant.
Second, address an egregious offense a party commits in a joint session on the spot. Name it. This practice sets the tone for a productive session. After all, in the Third Side, William Ury reminds us that the neutral is there to offer the parties a safe container to openly discuss their differences and discomfort with each other.
Third, sometimes an offense is subtle, and the party carrying it out may be unaware of it. Investigate it.
Fourth, how do you investigate the Elephant? Caucus with that party. A question a mediator might raise with the party that appears to have committed the offense is, “Gee, I noticed when you did “X” the other party was uncomfortable. That was my observation; I thought it was good to take a break to see if something is going on.”
Fifth, practice good decorum. Establish and maintain the agreed-upon ground rules. Two golden ground rules are don’t interrupt the other party when they are talking and do not denigrate the other party. When a party breaks those promises a mediator can call them on it by naming the rule.
Sixth, let go when the Elephant refuses to be chased down. Terminate the mediation. The mediator or a party can terminate the mediation or its involvement in a multi-party mediation.
Mediation is all about self-determination. Parties enter mediation voluntarily, and mediators have ethical obligations to make a determination on their own whether the mediation session is the appropriate forum to continue the matter. The mediator can check in with the parties prior to a termination or in a difficult situation terminate the mediation.
Someone has to chase down the Elephant when a party is attacked subtly, verbally or non-verbally or through an action or inaction. These and the earlier tips in Part One of the musing are applicable to people experiencing discomfort about an Elephant looming in their room inside and outside the mediation context. I wish you good luck with being rid of elephants. If you missed Part One of the musing, you can find it here:
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