Mediation can be an emotion-packed event for all participants involved (hopefully not the mediator!). As a mediator, I am between two or more participants, usually experienced business people, often parents, and yet they are behaving like “kids in the playground”: each dedicated to proving they are “right”. In an emotional battlefield, I am the referee, counsellor and facilitator. It’s a challenge.
An effective mediator takes a sensitive and intense situation and works to defuse the participants emotions by speaking in a way that both sides understand and respect. I always gauge the participants’ body language, mannerisms and attitudes as the day progresses. This is helped if there is an assistant or co-mediator involved.
The participants are often angry: Anger that something was done wrong and anger that someone would litigate and make accusations. Anger is often an understandable manifestation of injured pride. It is important to keep that in mind because often the feeling is intensely personal: The claimant may have affected the defendant’s honour and their business reputation, which can be more damaging than a personal slight. A perceived insult to a business reputation can induce a defendant to wish to “clear their name”.
In property and commercial disputes, claimants often feel a deep sense of betrayal. In their eyes, if they have trusted a professional and created expectations that, if not met, leave a bitter taste. I see this most deeply when I mediate disputes involving neighbours. People develop an intense emotional attachment to their home. They want it to be absolutely perfect, and if a defect arises in building works or if a timeline is not met, they feel betrayed in their trust and disappointment in an object that, in their minds, promised much happiness in their lives. If their neighbours encroach on their land, even if this a few inches, they can feel “defiled” and as if they were the victims of theft – so they even can see their neighbour as a criminal. Yes, I have seen this several times!
Defusing emotional situations like these is not easy. I find myself “counselling” the parties to reassure them that their feelings are normal and that there is a practical way of resolving their issues so that their emotions can settle down in time. One of the most powerful negotiating tactics I can often bring out –sometimes even more powerful than money– is convincing one participant to apologize to the other. Often, an apology, or even an acknowledgement that you’ve been heard, can go a long way in assuaging a sense of betrayal, and I often hear, “That’s all I wanted in the first place”. Apologizing is akin to admitting wrongdoing, and this is most difficult for any party to come to terms with. Therefore, it is a delicate circumstance to negotiate.
Whilst feelings of anger and betrayal are only two of a myriad of emotions I encounter as a mediator, they are the two I see most often. Participants and mediators must keep in mind that even though they are negotiating with money, practical issues and business ventures, the real currency in mediation are the emotions, ego, pride and principles on both sides of the table.
