6 Reasons Why Mediator-Generated Solutions Are Not a Good Idea

Posted in : HR Updates ROI on 20 October 2017
Mary Rafferty
Consensus Mediation
Issues covered:

My last post explored the temptation that mediators sometimes fall prey to: being suggestive or directive about the kinds of solutions that might help resolve the issues between the parties.

As a Mediation Trainer and Assessor, I get to spend a lot of time watching people mediating. And while the cases are all ‘role play’, those in the mediator role are practicing and demonstrating real mediation skills. Despite knowing the theory (and ethical principle) of ‘self-determination’, it can be hard to resist dropping some subtle (or not so subtle) hints that might nudge people towards an outcome.

Six reasons why mediator generated solutions are just not a good idea, are outlined in here.

So what can you do instead?

What alternatives are there to the ‘would you not/could you not…’ pseudo-questions that you might be tempted to pose?

During the problem-exploration phase:

Here, the parties are ‘unpacking their suitcases’ and laying out their individual and (seemingly) separate issues on the table. One of my favourite books on mediation skills (aptly titled) ‘The Mediators’ Handbook’ (Beer & Packard 2012) describes this initial phase of the mediation process as ‘The Exchange’. They outline a number of tasks that need to take place during this phase, none of which involve exploring solutions. They make a clear distinction between this phase and the next phase which is about ‘reaching resolution’.

‘The Exchange is like cleaning out your closet…It looks like a huge unpleasant mess, and you wonder how you’ll ever organise it. But first you have to start by dumping all the stuff out and seeing what is there’ (Beer & Packard, 2012, p.39)

Trying to find solutions during this phase is like tidying the visible layer of the mess and hoping what’s underneath will sort itself out.  

Instead, the first task of the mediator is to make sure the clutter gets spread out on the floor first. Only then will the parties be ready to start putting things back together again in some kind of orderly way.

This kind of ‘exchange’ between the parties serves a dual purpose.

  • It gets all of the information/data from facts to feelings out on the table. Drilling into this helps to get clarity on the ‘needs and interests’ which are the essential pre-requisite to the ‘resolution phase’.
  • It builds empathy between the parties so they have a ‘clearer, shared understanding’ of their situation. This, combined with the opportunity to voice their concerns and be listened to, leads to ‘emotional relief’.

Only then are people ready to move into the solution-seeking phase. (Beer & Packard, 2012, p.41)

Instead of grasping onto solution-nuggets in this phase, the mediator needs to ask questions that facilitate this exchange to take place:

  • What happened (facts, background context) – each person’s perception of this
  • ‘Can you say more about what it was that didn’t work for you?’
  • ‘What specifically about this situation bothers you?’
  • ‘Can you share an example of the behaviour that you found difficult?’
  • ‘What was it about what Jane said you found most difficult?’
  • ‘What assumptions did you make about Jane when…’
  • ‘What was it you would like Jane to understand about your experience of what happened’
  • ‘What was the impact of ….’ ‘Say more about how this impacted on you?
  • ‘What does this say about what it is you would like Jane to do differently?’
  • ‘What would have worked better for you?’
  • ‘What sort of relationship did you have in the past?
  • ‘What worked well…when did things start to become strained?’
  • ‘What questions do you have of each other about this situation?’

And, of course, every question you ask to one, you ask the other person(s). That ensures that you come across as balanced and impartial.

During the problem-solving phase

The second place we get drawn into the temptation to make suggestions is in the problem-solving stage. The parties have been talking now for a while and there’s going to be some sense of ‘going around in circles’ about some aspects of the discussion. ‘Have you thought of …xxx’ questions seem like a great idea now.

I prefer to call this phase ‘Generating and Negotiating on Options’ because that’s what you need to be doing at this point. Rather than latching onto one ‘potential solution’ and trying to get them to meet in the middle, focus instead on drawing out a number of suggestions and ideas.  

You can’t solve a problem with the same level of thinking that created it.

So here, you need to foster an exploratory and creative mindset. Set it up as ‘brainstorming a list of ideas and suggestions’ – you might even use a flip-chart for this part to capture what comes up.  

  • ‘Let’s look at some options now that would help each of you feel more respected’
  • ‘Let’s brainstorm some suggestions that would improve communication between you both’
  • ‘Can we take some time now to explore how best you might give each other feedback if something isn’t working so well for you’

And then it’s over to them. All you have to do is listen. No need to evaluate or negotiate yet, that comes later.

Some other useful questions at this phase:

  • ‘When you say ‘more professional’ can you say what it is that you mean exactly by professional…what does ‘more professional’ mean/look to each of you?’
  • ‘When you say ‘respect’, respect for what? What do each of you need to have respected?’
  • ‘What will you each be doing differently that will signal to you that you are being respected?’

‘How do you each demonstrate respect, in turn?’

This article is correct at 20/10/2017

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Mary Rafferty
Consensus Mediation

The main content of this article was provided by Mary Rafferty. Contact telephone number is +00 (353) 71 9651966 or +00 (353) 86 8252423 or email mary@consensusmediation.ie

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