The Mediator's Stance

by John Ford
(excerpt from John's book "Peace at Work")

In martial arts training, students are taught the benefit of various body and mental postures. The totality of these postures, when adopted together, amounts to an effective stance for defense and attack. Students are taught to adopt this stance when presented with a challenge, notwithstanding any contrary reflexive or reactive instincts or habits. The familiarity of the stance inspires confidence and prepares them to meet their reality with competence and agility. It ensures that they are on the best footing possible.

In mediation, there are a number of key postures that are helpful to adopt, that together can be described as the mediator’s stance. In essence, the stance is more of an attitude and mindset which ensures that you do no harm, while supporting collaboration and the emergence of a creative solution. It prepares you to respond consciously in the moment when mediating, and allows you to mediate informally.

Supporting the resolution of conflict through mediation is considered a high-level emotional intelligence skill that integrates and draws on all the domains of emotional intelligence: self-awareness, self-management, social awareness, and relationship management.1

As I review the mediator’s stance in this chapter, what will become apparent is how important it is for you as the mediator to be self- aware, not only of your emotional footprint but also of the thought patterns that both enable and limit your ability to mediate.

The ability to consciously adopt the mediator’s stance, especially in the chaos of conflict, requires a calm mind and a relaxed body. You need to be able to access the wisdom of your intuition.

In mediation, you need to connect with and attune to the conflicted participants. This requires good people skills, to maintain and foster harmony without taking sides. It is this sense of connection that enables you to stay in touch with what is going on, to read the currents, pick up the vibe, and intervene in ways that promote collaboration. What matters ultimately as a mediator is how you guide the conflicted participants in an emotionally resonant manner towards the possibility of a resolution without doing any harm or making decisions for them.

Let us take a closer look at the different elements of the mediator’s stance:

1. The real self
2. Relaxed and calm
3. Open to subtle information and feedback
4. Empathic rapport builder
5. Balanced and omnipartial: equally there for everyone
6. Collaborative process guide, not decision maker
7. Keeper of confidences
8. Respecter of differences
9. Inspiring beacon of hope

1. The real self

“When we present ourselves to the world without a mask and keep it real, we offer the same opportunity for others to do the same.” Madisyn Taylor

Shakespeare’s call to be true to ourselves in Hamlet is easier said than done, mainly because of the challenge of knowing ourselves. If we do not know ourselves, how can we be true to ourselves? And, as if that were not enough, the concept of ‘self ’ is contested in society.

We often think of ourselves as our social identity and the voice in our head. While our ego plays a vital role in our ability to engage meaningfully in the external world, the danger is that we mistake this one aspect of ourselves for the whole. Beyond our ego and all the helpful roles it can play, there is an unchanging aspect of ourselves that is conscious as an observer and a deeper guide to our lives. In my opinion, this fundamental consciousness is the real self, and when you are able to act from this place, you will find the firm ground of authenticity.

What is important is that you consider your concept of self and be as true to that as you can be. Ultimately, the best person you can be is you. For the real (not false) self to be present in this way requires self- knowledge of who you are and who you are not.

If you do not know yourself, you are more likely to want to hide behind a mask. You may become defensive, pretend to know things you do not know, and try to create the impression that you have abilities that you do not have. However, when you act authentically (from the place of real self), you are transparent, and encourage the participants in the mediation to be real with one another.

You also need to play different egoic roles without attaching to any. Some years ago, the American Arbitration Association identified some of the roles a mediator plays, which include being the facilitator, scapegoat, trainer, agent of reality, resource expander, and problem solver. Authenticity is maintained in the knowing that you are your real self and not the roles that you play.

You need the courage to act in alignment with your deepest sense of self as revealed by your values, and not hide behind any masks or roles. When you are clear about your values, they guide you. When you know yourself, you can act in ways that are true to yourself when presented with challenging situations. You know what you will and will not do; that ‘yes’ means yes and ‘no’ means no. It is this knowing that allows you to act with integrity and be of true service to others.

Consistently applying your values is the hallmark of integrity. To do this, you need to take the time to explore your deepest beliefs about the world as you compassionately examine and address the question of who you really are. As mediators, this knowing ourselves includes a consideration of a relevant set of ethical standards of conduct, which are usually determined by the milieu in which we live. Most embody common sense guidelines on matters that are central to being a mediator, such as self-determination, confidentiality and neutrality. At the very least, you should review the standards of conduct for mediators in order to determine your own.

2. Relaxed and calm

“Stay calm and relaxed, as if nothing in the world bothers you!” Unknown

When we are relaxed, we are at ease and without unnecessary tension in our body. When we are calm, we are not worried or bothered and can be at peace with what is unfolding. We are like the calm eye in the center of a storm. When we are relaxed in our body and calm in our mind, we are able to be present in the moment and respond at our natural best.

Remaining relaxed and calm is not easy, especially when attempting to mediate. At a practical level, mediators need to monitor their internal state. If something is disturbing you, you are not relaxed and calm. Understanding what is bothering you, and being able to restore a calm and relaxed state within you, is vital for yourself and the participants in the mediation.

Most behavioral patterns that signal an emotional disturbance fall into one of two protective strategies. The first is when we behave in a volatile way. We battle the danger of eruptions when our amygdala shuts down our ability to be restrained and sensitive. We then display anger and act upon it. The second strategy, typically more fear based, is when we suppress our emotionality, sometimes consciously but mostly unconsciously. The risk with this strategy is the random leakage of emotions and the display of passive-aggressive behavior.

As mediators, we need to model being real with our emotionality, and to respond consciously rather than react unconsciously. We therefore need to know what triggers us and how we react at our worst. We also need to develop effective strategies to manage our own unruly emotions. The practice of breathing as a primary calming tool cannot be overemphasized. I encourage a few deep breaths before every mediation. When I notice I am bothered by something during a mediation, I find deep breathing an excellent tool to restore my relaxed and calm state. I can then connect and respond consciously to what is actually unfolding in the moment.

3. Open to subtle information and feedback

“The quieter you become, the more you are able to hear.” Rumi

When you are mediating, you are constantly presented with the dilemma of what to do next. Your choice, whatever it may be, is dependent on your openness to feedback. Instead of following a rigid plan, you need to meet your reality and respond with an intervention that is sensitive to the participants’ needs in the moment.

Once you have acted authentically, with what you believe to be the wisest intervention, you should eagerly anticipate the next round of feedback. If your intervention is having the desired effect, great! If not, you need to act on the new feedback and do something different. This is the heart of the work.

Intuition

How we resolve the dilemma of what to do next, based on the feedback we have received, brings us to the most subtle form of sensing used by mediators – sensing things intuitively. Intuition is that sense of knowing without knowing why. Unlike conscious thought, where we apply theory to facts, intuition is sourced from the unconscious. Without being fully aware of the underlying reasons or theory, we have a spontaneous sense of knowing. This emerges primarily as a feeling, an image, a hunch, or a sense that we consider strong enough to act upon.

How, then, do we develop our intuition? In her classic book, Awakening Intuition, Frances Vaughan offers an approach that allows our whole being to be a more receptive sensor to what is going on.2 She suggests that we quieten our minds, both before and during situations where we need our intuition.

Vaughan encourages an open sensitivity to subtle information in the form of feelings and images as the primary way to get in touch with our intuition. She warns that if we have not cleansed our own emotional bodies – our projections, transference and triggers – we will be distracted from picking up the subtle messages that are being sent. She points to meditation as a key tool that allows intuition to come into conscious awareness without interference.

To receive intuitive information, we need to be relaxed and calm in order to discern the difference between the noise of our egoic mind and sensed insight and wisdom that is available when we are quiet and acting from the place of real self. As we continue to discover the value of our bodies as sources of information about what is going on emotionally, we gain confidence in our ability to sense what it is we are feeling at a visceral level, and notice more of what our ‘gut’ is telling us. We listen in the silence and trust the information that comes to our attention.

Facial expressions

Body language is another source of information that can be especially helpful to sense the emotional energy at play. It is a rich source of information for mediators, and includes the display of emotions through both facial expressions and body gestures.

As an observer of emotional expressions, try not to second guess people or catch them out. Rather, establish baseline expressions and gestures early on so that you can notice deviations from the norm. Then pay attention to these deviations, as well as other subtle expressions of emotions, at moments when sensitive or difficult information is being shared.

Psychiatrist Paul Ekman at the University of California, San Francisco (UCSF), established that facial expressions are universal and that we are all born hardwired to express a wide range of affective states.3 Because of the ancient circuitry, these expressions provide reliable information about what is actually going on emotionally, rather than what is being masked. Whether one is an Inuit, an African or an American, a smile is a smile. Anger is anger. And unless we are actors, these emotions are difficult to fake. Ekman identifies seven core emotions – fear, disgust, anger, sadness, surprise, happiness and contempt. He also describes with great precision the exact musculature that is engaged for each of them.

It is a good idea to learn to recognize emotions by interpreting facial expressions with confidence. Ekman has developed online learning materials that help you to develop this skill. You will learn that with anger, there is a tightening of the lips and a furrowing of the brow. With sadness, the eyebrows join high and there may be a wobble on the chin. A one-sided smile, often called a smirk, shows contempt. A smile can be genuine or social – the former involves the contraction of the muscles around the eyes and accounts for the twinkle that politeness does not bring. Fear is sometimes confused with surprise because the eyes are open with both, but fearful eyes are less round, and there is more of a glare. With fear, the mouth has an almost triangular shape and pulls down. Disgust shows in the center line as a scrunching upward of the face, and is often confused with anger.

Gestures

Beyond the facial expressions are the gestures of the body. They are easier to mask precisely because they are controlled by a part of the brain that allows for voluntary direction. Gestures are therefore less reliable indicators of emotions. For example, it is easier to learn not to cover your mouth with your hand when you lie than not to display, even fleetingly as a micro-expression that you quickly mask, the moment when you are genuinely surprised.

In addition, where facial expressions are fairly universal, gestures can be culturally specific. For instance, a thumbs-up gesture does not mean the same thing everywhere. We should therefore proceed with caution as we pay attention to gestures.

There are some gestures that are so grand that they are hard to ignore. The hands and feet are especially expressive. Hand-to-head movements are interesting displays of distress, especially if synonymous with a difficult question. They can point to deception or, at the very least, fear. When it comes to the feet, try to watch for curling toes as a sign of discomfort. Digging in of the toes is usually a sign of determination.

Remember to be cautious and open to the possibility that you may have misinterpreted a gesture.

Tone

We have considered non-verbal information that we gain through what we see (facial expressions and body gestures). Tone provides emotional information through what we hear.

In his book Blink, Malcolm Gladwell explores the fascinating studies that were conducted to see why some surgeons were being sued while others were not.4 What is interesting is that it is not quality of care but good communication that is the determinant. An initial study by Levinson recorded interviews of these surgeons with their patients.5 She found that those who were not sued had spent, on average, three minutes longer with their patients. They had also listened well and had used orienting comments and appropriate humor.

In a follow-up study by Ambady, 40-second clips from the original Levinson study were content-filtered to retain intonation, pitch and rhythm but erase content (the actual words used).6 Ambady asked laypeople to review the clips, and based on what they heard, determine which surgeons had been sued. With this very limited information (mainly intonation), participants were able to make accurate predictions. Surgeons who had been sued had used a dominant tone, while those who had not often sounded anxious. Ambady concluded that a dominant tone is interpreted as a sign of not caring, while an anxious tone is interpreted as showing concern.

Clearly, the old saying is correct – it is not what you say, but how you say it. As mediators, we need to pay careful attention to intonation as a vital source of information about emotionality.

Feedback

Ideally, you should use all your experiences as the grist for your learning mill. You need to be aware of the relationship between your self-awareness and your ability to be of service as a mediator. When you are given feedback, accept it as a gift. If it is painful, try not to react defensively by thinking of all the reasons the person is wrong. Rather, seek the grain of truth in what is being said.

4. Empathic rapport builder

“The best way to persuade people is with your ears – by listening to them.” Dean Rusk

Nothing can be a substitute for the rapport the mediator establishes with each of the participants in the mediation. In everything you do, seek to build trust and confidence (rapport) between yourself and the participants. Ultimately, rapport reveals your degree of influence and allows you to guide the participants towards resolution.

Trust

“He who does not trust enough will not be trusted.” Lao Tze

Trust is the knowledge that we can rely on another to care about our goodwill and interests. Trust is hard earned, takes time to grow, and can be eroded quickly. Some mediators imagine they have opened a trust account with each participant. They seek to build as much trust as possible so that they can make withdrawals when, at certain times in the mediation, they need to say something difficult, such as asking a participant a sensitive question.

Participants often have significant blind spots. Whether and how we address them takes trust and a delicate touch.

So, how do we build trust? It starts the minute we start interacting. We are cordial and friendly. We greet, say thank you, and goodbye. We make eye contact and we smile. We also listen empathically so that everyone feels heard and understood. This is probably the most impor- tant skill that all mediators acknowledge as vital to building trust.

Mediators are reliable. We do what we say we will do when we say we will do it. We keep confidences, and communicate with care and sensitivity. We are tactful. We clarify our role as mediator. We are clear about how we support the emergence of an agreement. We know what we will do, and also what we will not do. We model respectful com- munication. We are not afraid to be real and authentic, despite the risk of possible harmful consequences.

Most fundamentally, mediators build the caring aspect of trust through vulnerability. When people share what is going on, they become vulnerable and take the risk that what they share may be used against them in the future. If this risk is not realized, then trust grows, but if it is realized, trust is eroded. It is that simple! That is why empathic listening is so powerful. If you are able to connect through an empathic listening posture, and safely reward the vulner- able expression through validation, then trust grows.

Confidence

“With confidence, you can reach truly amazing heights; without confidence, even the simplest accomplishments are beyond your grasp.” Marianne Williamson

As mediators, we need to be confident in our abilities. Like a mountain guide who realistically says, yes we can get to the top, we say, yes we can get to yes. We can get to resolution. We are the beacon of hope. It is about knowing and believing in our ability. Confidence is related to competence. And, like trust, competence in a new skill takes time to develop. So we take baby steps, and with each step our competence and confidence grows. Our growing confidence will be felt in the open emotional system and have a beneficial effect on the mediation process.

We also need to conduct the mediation process in a way that allows the participants to grow their confidence in their ability to resolve the conflict through the carefully measured steps of the mediation process. Signing an agreement to mediate is a baby step that builds confidence. Reaching agreements on ground rules is another step that has the same impact.

When the participants see that you are prepared, it inspires con- fidence in your ability. Appearing ready is a good thing. However, the goal of preparation is not to predetermine and control, but to give you the necessary agility to respond to the reality you meet. If things are different, you need to respond to that, not to the reality you imagined during your preparation. If you spend too much time thinking about what you are going to do next, or worrying about what you just did, you will miss what is going on in the moment.

5. Balanced and omnipartial: equally there for everyone

“Do you want to know what my secret is? I don’t mind what happens.” Krishnamurti

Our experience of riding a bicycle provides an interesting window into balance. As you know, you push down hard on the right pedal and follow with an equally hard push on the left. Once you start moving and you gain momentum, it is easy to balance and you do not have to pedal that hard.

Balance in mediation is similar. You listen empathically to the one participant, and then to the other. When you are listening to the one, it is like you are pushing down on the right side. Then, when you are listening to the other, you are pushing down on the left. You strive for balance in the momentum that emerges. And then you are listening to both. The momentum grows and you move forward.

Balance is the essence of the mediation stance. A mediator does not take sides. Our intention is to be there for all, and to be fair and balanced in all that we do. To this extent, it can be said that mediators are omnipartial.

In real life, however, it is seldom possible to be perfectly balanced. That is why the best we can do is to show that we are working hard to realize our intention to be there for all. That is the crucial perceptual piece. Whether or not we are succeeding in maintaining balance is for the participants to decide.

When you take the side of management, you are not adopting the mediation stance and you are making it difficult for yourself. When you adopt the mediation stance, you are being there for both the manager and the employee. You hold the space for them to address their concerns directly, with your balanced help, if needs be.

The participants should decide whether we are acceptable as mediators. We should be willing to disclose potential conflicts of inter- est of relevance to the mediation. And if we are no longer acceptable, we should withdraw. Remember, the mediator is there in the service of the participants.

6. Collaborative process guide, not decision maker

“When one is to succeed in leading a person to a certain place, one must above all take care to find out where he is and start there.” Søren Kierkegaard

Being balanced or neutral about the substance of the matter does not mean that you do not care or support the process. Mediators are like mountain guides who use experience and innate knowledge of the mountain to support the mountaineers to accomplish their goals. Mediators guide the process of conflict resolution, communication, negotiation, and forgiveness.

As we guide and interact with the interplay between the par- ticipants, we observe both the collaborative and the competitive moments. We should not rescue either participant from the conflict, but constantly seek to reframe towards collaboration. It is in this regard that we are not balanced. We need to lean the process towards collaboration as we guide. That is part of our stance.

Most conflict involves poor communication. To collaborate, we need to communicate; in fact, all we have is communication when it comes to resolving conflict. As mediators, we should model effective communication. We should strive to be powerful empathic listeners who communicate with clarity and frame things in a collaborative manner. Most mediators agree that active listening is central to the success of mediation. It is like a salve that always makes things better. We need to support effective communication during all negotiations, and help participants to deal with power imbalances in explicit ways.

In mediation, we need to be clear about our relationship to decision making. Our role is to not decide. The participants are res- ponsible for making the decisions. You can talk about the decisions, and the potential for both good and bad outcomes as a result of them, but you should always stop short of making the decisions, whether in fact or by the application of undue pressure. Your duty as a guide is done when you know the participants have the information necessary to make an informed decision, in accordance with their needs and beliefs. The fact that you would do something differently does not matter. Mediation is based on participant self-determination.

7. Keeper of confidences

“If we give away another’s private information (whether or not they find out), we also undermine our relationship with them, destroying trust and thereby degrading the integrity of the relationship.” Victoria Walton

Martti Ahtisari, former Finnish President and Nobel Peace Prize winner, is a well-known mediator. He once commented that the greatest compliment he was ever paid was when an Ethiopian participant expressed appreciation for the tactful way in which he was able to say difficult things to people that they did not want to hear.

As mediators, we need that kind of sensitivity. We need to be polit- ically savvy and not put our foot in it. When asked to keep confidences, we should keep them. We are honored guests in the intimate lives of the participants with whom we work. Conflict is personal and usually reveals our private lives. We need to support the process of conflict resolution and take seriously the trust and confidence the partici- pants place in us.

Establishing the extent to which confidences will be kept is an important task for the mediator. It puts the participants at ease and encourages them to be candid with one another. The basic logic is that to address and resolve a conflict, you need to share your per- spective openly. This means saying how you feel, what you think, and what your needs are in order to move forward. If the participants are afraid that the information they share will be used against them, they will not want to share it.

In a workplace context, legal confidentiality is less relevant. However, the way in which what is said and agreed upon during the mediation is shared with other members of the organization is natu- rally of concern. Typically, the manager to whom the two conflicted employees report will want to see the terms of any settlement agree- ment. This is safer because it controls, through agreement, what information is shared with whom.

A practical aspect of confidentiality pertains to including identi- fied confidants with whom the participants will probably discuss the mediation. Co-workers, spouses, partners, mentors, and friends are often aware of the mediation and will ask about it. By including these confidants in the confidentiality of the mediation, we acknowledge the reality that this communication occurs, and therefore build trust.

The City of Las Vegas, Nevada, recently promoted itself with a series of advertisements that ended with the catchphrase: “What happens in Las Vegas stays in Las Vegas.” This conveys the essence of confidentiality. It is effective because it uses humor to ease the tension around the issue of confidentiality. The goal in mediation is to create a safe environment in which information can be shared without fear of negative consequences.

The expectation that confidences shared during the mediation will be privileged from disclosure is typically achieved through a written agreement between the participants and the mediator. These agreements are either provided by external professional mediators or through policy documents associated with an internal mediation program. They define the scope and limitations of the confidentiality agreed upon. A sample is included as Appendix 1 on page 159.

A common assumption made when a confidentiality agreement is signed is that all communications within the mediation will be confidential. Yet, even where laws have been passed to protect confidentiality, there are limitations. It is thus good practice for mediators to clearly indicate the limits of the confidentiality agreement. For example, child abuse, threats of imminent harm to others, and admissions of criminal activities are usually excluded from protection in confidentiality agreements.

In the workplace, it may be prudent to craft additional exceptions to the confidentiality agreement to cover unlawful employment activity, such as harassment. This may be important where internal mediators are used, for instance, when an organization is construed as having been put on notice to conduct a fact-finding investigation for purposes of harassment legislation. One way organizations address this issue is by establishing that raising a concern in media- tion does not constitute notice, and that if an employee has such a concern, the normal reporting channels should be followed. Another way the issue is addressed is by using external mediators who are not full-time employees of the organization.

Mediation programs need to be monitored to evaluate their efficiency and success. Confidentiality rules should not preclude responsible, statistical monitoring and evaluation. After the mediation is over, it is normal practice to report whether or not a settlement has been reached. With the consent of the participants, the terms of any agreement are often reported to peers and supervisors on a need-to- know basis.

8. Respecter of differences

“Different people, like different communities, have different strengths, and the only thing that works is using our different strengths together.” /’Angn!ao/’Un

Mediators respect both the cultural and style differences that emerge and are at play during the mediation.

Most simply, culture can be defined as the way things are done within a particular group, whereas style can be defined as the way things are done by each individual within a group. When mediating in the workplace, we need to consider the various layers of culture that are present – that of the country in which the organization is located, the industry, and the specific organization. Additionally, we should take into account the culture of the different work groups and depart- ments within the organization. Finally, we meet the individuals, each of whom has a unique style.

Differences at the group level are usually those of culture, whereas differences at the individual level could be those of culture and/or style. Whether we are dealing with group differences or indi- vidual differences, we should be respectful and act with sensitivity. We also need to allow the participants to resolve the issues that may arise between them due to differences of culture or style.

Let us consider a dispute that centers on different ways of doing something that is informed by cultural values. What if the expectation is that everyone shares openly how they are feeling, yet one of the participants comes from a cultural background where privacy and restraint regarding the public expression of feelings is the norm. What would you do in this situation? Some would suggest that the ‘when in Rome’ rule should apply, in other words, that the person from the differing cultural background should adapt. Yet, if that happens, the dominant culture is reinforced and the message is given out that difference is unwelcome.

Ideally, participants should be able to acknowledge and transcend their cultural and style differences, at the group and individual levels, in order to focus on a solution that meets the needs of all. And, when one is open, one understands that different approaches taken by people due to culture and/or style variations lead to a more robust solution that is sensitive to the situation.

There is as much diversity within a culture as there is between cultures. Thus, rather than thinking that we should use our cross- cultural communication skills when we communicate across different cultural groups, we should assume that all communications are essentially cross-cultural.

9. Inspiring beacon of hope

“In my work as a mediator I use hope every day to encourage organizations to work with people they have given up on, and to encourage people who have given up on organizations, professionals, and the system, to give them a chance. Much more often than not, hope works!” Caryn Cridland

‘Contagion’ is the word Goleman uses to describe the infectious quality of emotions. We feel together, and, through the openness of our emotional system, are able to influence the emotional states of others. As the mediator, you probably have the most significant influence over the emotional climate during the mediation. The mediation experience will be impacted negatively if you are anxious, distracted or insecure, but positively if you are relaxed, calm and hopeful.

As long as you are there, you signal hope for the participants. Your goal is to be real in your enthusiasm. Even if you are seldom consciously acknowledged, you are a reassuring figure and are appreciated. Return this appreciation by reminding the participants that you believe in them and their ability to resolve the conflict. Tell them that, in your experience, when people follow the mediation process, they find ways of improving their situation and often resolve the conflict in a lasting manner. Inspire the participants to make the best possible decision in the most creative manner with the resources at their disposal.