It’s two years since I conducted my first mediation. I’d had 20 years as General Counsel for the NSW Education Department. I’d been involved in hundreds of cases. But I was always on the defendant’s “side”. As an employed lawyer, the Department was always my client. So, I was both curious and trepidatious to be in the middle of two or more parties, with the responsibility of helping them reach agreement.
After two years what have I learnt? What would I tell my former self in the roles of lawyer or educational administrator?
Here are eight things I’ve learnt so far.
1. The mediator has no “special sauce”
This might be a surprising claim to start with. I don’t mean to put mediators down. The courts would be clogged with unsettled cases, but for some very talented mediators. But, before I was a mediator, I thought, perhaps naively, that the mediator was a god-like character with special powers of perception, persuasion and insight. I’d think they had some special trick to pressure the other side to reach a compromise.
As in The Wizard of Oz, if you are one of the parties, you often don’t get to see behind the curtain how the other side changes their mind.
The truth is there are no “magic tricks”.
There are simply certain basics – good process, empathy, rapport-building, curiosity, creative option generation, independence, patience, honesty, and helping other people think out loud. These human ingredients can be honed and cultivated so that when combined, they appear magical.
Implications for lawyers
Lawyers can contribute to “the magic” by being not focusing only on the legal issues. They can seek instructions that allow several dimensions to be part of an agreement. This might involve apologies, acknowledgments, steps taken to prevent the future recurrence of past events, system changes, different periods for monetary payments, references to known future events or to third-party specialists to determine unknown facts.
Implications for school leaders
School leaders are used to having authority. A government policy or school board may specify that the principal is the decision-maker. But, in a negotiated outcome, all parties need to agree, and part of the role of a mediator may be to help each party consider the interests of the other while not having to project their customary positional authority. So, school leaders can use their authority to come up with novel solutions that may not have been imagined before the mediation, rather than only sticking to their guns and playing hard.
2. Never give up hope
Some mediations start with a feeling that there is little hope of an agreement. It is easy to get prematurely pessimistic. But sometimes it is like solving a sudoku puzzle – everything seems hopeless until, with one little square, everything falls into place.
The process of conciliation takes time. People’s finishing point is not their starting point, and they may successfully disguise their intentions early on. Or they may genuinely change their mind during the mediation when you help them think through the alternatives if there is no settlement.
Parties may start with private positions that are mutually inconsistent. In such a case, a party will typically only change their mind through the mediation process if they learn something they weren’t aware of when they went in. That process takes time. So, there is no point speculating about how you think the mediation will turn out. If people are still talking and making suggestions, there remains hope.
Have Patience. Take time. Maybe agree to reconvene at a later date.
Implications for lawyers
Lawyers may benefit from a mindset that they are prepared to change the position that went in with. It’s not that they must change, but that they are open to the idea of changing their mind, and not that they already have the “correct” idea of how to value their position.
Implications for school leaders
Schools may benefit from avoiding being locked in to a belief that an interaction pattern with a party will never be resolved. Pessimism itself can make the solution difficult.
3. Build rapport with the ultimate client, not just their lawyers
I have learned that it is worth spending time to build rapport with the inexperienced client (if permitted).
There is a lot of advice in the world about how to build rapport. I still consider it a challenge to do it well. Sometimes, it occurs easily when you find something you have in common to talk about. Other times, a client may find the experience even of talking to a mediator threatening or uncomfortable. So, I’ve begun telling myself:
- Think of gentle, open-ended questions.
- Take it slowly.
- Don’t talk too much.
- Allow some silence, but wind things up if you feel the client is uncomfortable with silence.
Implications for lawyers
Lawyers may have limited authority to allow the mediator to be in contact with the ultimate client. For example, the client may be in prison, or the ultimate client may be the head of a major government department or organisation and may not have time to be personally involved. Nevertheless, it is important, if possible, to have the real decision-maker involved in the negotiation. Ideally, the mediator needs to understand what motivates that person, what wiggle room they have. Cases may settle without the real-time involvement of the real decision-maker, but in my experience, it can be a barrier.
Implications for schools
School leaders can build rapport with the students who are their ultimate clients. They should understand what has led to conflict and whether wider issues need solving (e.g., student well-being and relationship issues, peer group issues, and family background issues). For example, an issue may superficially be about a student’s misbehaviour while at a deeper level involve peer bullying or mental health issues.
4. Some disputes need time to ripen
Like tomatoes on a windowsill, disputes need time to ripen.
Image generated by AI
Missing information leaves everyone guessing, and they will make guesses favourable to their side.
Implications for lawyers
It is a judgment call, but don’t seek mediation too early. There may be pressures to reduce costs by mediating well before a hearing date. Early settlement makes a lot of sense, but sometimes parties will be reluctant to settle because they don’t yet have enough evidence to evaluate their prospects of success. They don’t yet know which witnesses will be available or what they are likely to say. They haven’t yet found all of the relevant documentary evidence. While it is true that the benefit of settlement is to avoid costs on both sides, sometimes the differences between parties will be narrowed by mutual knowledge of more of the facts.
Implications for schools
With schools, too, some disputes may need to mature. One example is the case of an industrial dispute over salaries and conditions. There are times when both a union and an employer can be relatively comfortable in their conflicting positions, with both satisfying different audiences. However, nobody likes continuing conflict, particularly if it can harm third parties such as students. So, the challenge is for school disputants to ensure settlement is approached genuinely when a dispute starts getting “ripe”.
5. In-person is way better than Zoom*
I began my mediation practice at the tail end of the pandemic. During lockdowns, Zoom had become the default option for mediators.
Don’t get me wrong. I have nothing against Zoom per se. I use it multiple times per week. But it has its strengths and weaknesses.
On the plus side, Zoom is convenient to organise, saves travel time and the inconvenience finding suitable rooms. There can be intense competition for such rooms, and their absence can determine whether a mediation can proceed when wanted. Zoom also allowed the profession of mediation to keep afloat during the lockdowns. The capacity of a mediator to create breakout rooms and to shuttle between the rooms was an essential innovation in video-conferencing, taken up with enthusiasm by mediators. And, of course, there are times when in-person conferences are strongly inadvisable or simply not possible; for example, if a participant is in prison, if there are safety concerns about a participant, or if a participant resides overseas.
However, while Zoom mediations are vital to the mediator’s toolkit, they should not become the default option. There are many reasons to prefer face-to-face meetings:
- It is very difficult to have ‘trivial’ social chit-chat in a Zoom meeting. Everyone arrives at the meeting and stares silently. They can’t easily just start talking to the person next to them as they would in person. Instead, they have to speak to the whole Zoom ‘room’. Some people find this very uncomfortable, like public speaking. I’ve called such small talk “trivial” above, but I think it is essential to establishing good communication.
- A lot of communication takes place before and after the formal meeting. Part of this is trust-building – an essential ingredient for successful mediation. It can be small talk about the weather, the kids, what’s planned for the weekend – identifying common interests. After the meeting, informal chat allows people to make arrangements for further conversations and means of undertaking some of the work of the meeting. Such one-on-one side conversations are just harder on Zoom.
- We have not yet properly developed Zoom etiquette. Some people feel they can turn up semi-privately to a Zoom meeting. They tune in and watch everyone else but keep their cameras off. This, in my experience, does the opposite of building trust. If a person doesn’t tell say why they have their video off, others may be distracted by thoughts like, “Why is the person not on video? Is it poor broadband signal? Is something going on in the background? Are they still there? Are they focused on the mediation or doing other work? Could there be other people in the room who are not officially part of the mediation? Is the person ashamed of their visual background?” Perhaps the person feels more comfortable not seeing themselves on screen. Whatever the case, it means that the reason for a video call rather than a phone call is not fulfilled. It is no longer possible for others to pick up cues about how another person reacts to what is said.
- An in-person meeting also allows the mediator to visit break-out rooms, to read the room, to get a sense of who may be the lead decision-maker, to ease any tensions and to establish rapport informally – all much harder in Zoom.
So, my default position is always to have in-person mediations if circumstances allow. Video conferences are far better for one-on-one conversations. Both lawyers and school personnel should consider the benefits of in-person mediation and only opt for group meetings if nothing else can be arranged.
*I use “Zoom” metonymically, really referring to videoconferencing more generally rather than any particular platform
Implications for lawyers
Present a good reason for holding a meeting in Zoom if thi is your preferred option in a particular case.
Implications for school leaders
As above, for lawyers. Limit Zoom meetings to one-on-one chats when seeking to settle disputes.
6. Pre-meetings are essential
Part of the success of a mediation depends on the pre-mediation steps. One of these is to conduct separate pre-meetings with all sides.
This should occur a few days before the mediation so that there is time to take further preparatory actions if necessary. This does several things:
- It allows the mediator to test their understanding of the issues. They may have been given reams of evidence and submissions, but what do the parties think are the real issues in dispute?
- It allows the mediator to point to apparent gaps in the information and seek anything missing or to understand whether this is an area of uncertainty.
- It is part of trust-building between the participants and the mediator.
- It gives the mediator a feel for how the parties will behave in the mediation, their main agenda items, and how to design a process and mediation style that fits the circumstances.
- Finally, it is a way to ensure that everyone is as ready as possible for the mediation.
Implications for lawyers
Lawyers should anticipate making time for a pre-mediation conference. They should use it as an opportunity to clarify the existing positions of the other parties and to get preliminary process agreements if there have been any obstacles to date.
Implications for schools
Schools involved in mediation should also consider carefully the benefits of pre-mediation meetings. This may not be standard practice in school disputes as often a school will want to move quickly in its decision-making to return a situation to normal. Nevertheless, particularly if a matter is long standing or complex, it is advisable to expect a mediator to have pre-meetings with both sides. It will help the mediation run more smoothly.
7. It’s never too late to learn
I’ve always liked the idea of a growth mindset. A mediator should avoid the temptation to be seen as the infallible source of all knowledge. No matter how experienced a mediator may be, there is always more to learn. When I have tested myself on signature strengths, two of my strengths are Love of Learning and Curiosity. Both of these attributes benefit a mediator oriented to a practice of continuous improvement. It’s a good idea to systematise this.
One way to systematise learning is to invite participants to give me feedback after every mediation. I don’t know if it’s an Australian thing, but people are often reluctant to provide feedback, particularly if it suggests criticism. Many don’t respond to a request for feedback, but when they do, it’s often helpful. No matter how uncomfortable it may be to ask for feedback, and to give it, it is like medical injections, dental floss or resistance exercise – unpleasant to undertake, but over quickly, and yielding long-term benefits.
For example, in one case, a participant was initially nervous. I had outlined the mediation process and asked whether she had any questions, to which she said no. She was with her legal team, so I assumed she would be ok. But after the mediation, one team member told me his client was still very nervous as the mediation got underway and that it would have been better to spend more time establishing rapport with her first. That was valuable feedback. Now, I am slower with the preliminary stage. Reflecting on it now, I should also ask lawyers or support persons to let me know at the time if they pick up signals that the client is outside their emotional comfort zone.
Another area that I never thought I’d need to learn much about, and frankly wasn’t interested in, was marketing. During my professional career, the issue was always coping with too much work rather than too little. Working for myself for the first time, the opposite is the case. I need to go out and find my clients – a slow, patient, gradual process. This, too, is something about which I am always learning more.
The mediation field is full of opportunities for continuing professional development including:
- Book clubs in which fellow mediators nominate mediation and dispute resolution books to discuss
- Peer supervision arrangements
- Learning about contact cultivation.
- Regular conferences and professional learning opportunities.
Implications for lawyers
Lawyers, too, should seek feedback after settlement conferences. They can learn more about their soft skills and whether their tactics successfully moved the other side.
Implications for school leaders
Schools are learning centres; all teachers, like lawyers, have continuing professional learning obligations. However, schools can learn more about inculcating good processes that will likely lead to disputes being resolved more automatically or not arising in the first place. Building in a “what could we have done better?” phase of the regular process is always worthwhile.
8. The most satisfying mediations are when I can help people find ideas or insights they didn’t have when they came into the room
Mediation can lead to emotion-charged exposure of the impact of someone’s past actions. It can allow for explanations of what went wrong. Expressions of grief may be unexpectedly intense experiences for all participants. There can also be “ah ha” moments when one side understands for the first time what is really troubling the other. Participants can gain confidence in bringing up ideas they have been holding in the background. And people can generate new options that hadn’t occurred to them previously.
Such moments are the highlights of a mediation.
Implications for lawyers
Lawyers – can appreciate the privilege of being present when a survivor chooses to bare their soul and expose raw emotions. This is a signal that they have built sufficient rapport. I can also feel satisfaction if a client has gone away relieved and even happy at the day’s end.
Implications for schools
Schools can get satisfaction from existing dispute resolution processes within a school that lead to more harmonious learning environments.
