The Seven Habits of Successful Mediators

An Interview with Dr. John S. Andrew, Queen’s School of Urban and Regional Planning
Labour Relations

An expert in managing conflict, Dr. John S. Andrew teaches negotiation at Queen’s School of Urban and Regional Planning; provides independent facilitation and mediation services to parties involved inland use, environmental, and transportation disputes; and leads executive seminars on strategic consensus-building in corporate real estate.

Dr. Andrew spoke with us about what makes a good conflict manager. You need to be part problem-solver, part creative thinker, and part loner, undaunted by the prospect of eating lunch by yourself.

What is the role of a mediator?

In conflict resolution we try to find a solution that allows as many of the parties as possible to have their key interests met. Seldom is it all of their interests, but usually a settlement can satisfy their most important ones. That’s really the challenge.

There’s a classic example I use for teaching. There are two sisters fighting over an orange. Both of them want it – those are their positions, and they’re completely incompatible. I ask the students, ‘What’s a possible solution?’ and someone usually says, ‘Get a knife and cut it in half’, which of course meets only 50 percent of each party’s interests.’ That’s not great – if were trying to sell my house for $300,000 and got $150,000 for it, I would be pretty unhappy. The best answer is that you need to get all of the parties to identify and share their real interests underlying their positions. Ask them why they want the orange. It turns out one wants the pulp to make juice, the other wants the rind to make a cake. So it’s possible to meet 100 percent of the interests of both parties.

This is a simple example but it gets people thinking in a new way. Finding the interests is important because there are usually more compatible interests than conflicting ones in a dispute. Once everybody at the table understands the key interests of the other parties, then you can begin to make trade offs and “expand the pie” rather than divide it.

What are the key attributes and skills of a successful mediator?

1. You have to be able to quickly understand the essence of the conflict. You often get just a few days notice of a mediation, and you’re under pressure to come up to speed about the dispute as fast as possible.

2. You have to be able to get the parties to focus on their interests rather than their positions. For months or years they’ve been saying, ‘This is what we want, this is what we want.’ You need to get them to identify what they really care about. I was involved in a railway dispute in British Columbia that was fascinating and complex. It was a good illustration of the need to, and difficulty of, identifying true party interests. For quite a while it appeared to be a fairly straightforward transportation dispute, with many common interests between the parties. However, as we began to unravel the interests it became apparent that for some of the parties it was really more of a land use/real estate conflict, and their interests had little to do with the operation of the railway. The land adjacent to the railway was worth far more than the railway operation itself, and real estate eventually became a whole new set of issues. Only once they were on the table could we begin to make progress toward a solution.

3. It is essential to be completely neutral and impartial, and be able to convey that to the parties. Both perception and reality are important. Some of that is the language you use and how you conduct yourself during mediation, and it can be very simple: if there’s a lunch break, eat by yourself. The parties may be getting together and it’s natural that they invite you, but you can’t unless everyone is together. Disputants are very sensitive to your degree of fairness. If you lose the parties’ trust, it’s almost impossible to get it back.

4. You need to know when to let the parties hash it out, when to step in, and when to suggest possible options. You ask yourself, ‘Are they making progress on their own?’ Sometimes you’re better just sitting back and letting that process happen but it can be uncomfortable. Remember it’s their dispute and they have to craft the solution jointly – you can gently steer them but you can’t hand them any solutions, even if you see them. It sounds terrible to say, but a good mediator doesn’t care about the content of a settlement or whether the parties even reach agreement. You’d love to be able to say, ‘I’m such a good mediator, I’ve done 120 cases and 99 of those have been resolved,’ but that’s not a good measure of success. Lots of agreements are reached that are bad agreements. Sometimes the best thing is for the parties to walk away before that point. I’m there to help the parties to craft their own agreement, and if they reach one, that’s great. But there are lots of legitimate reasons why they might not. This is a voluntary process, and there has to be buy-in from all the parties. They won’t all love the agreement, but the key is that meets their most important needs and they crafted it themselves. If I come in and suggest something, they are less likely to implement it and buy in, and the agreement is more likely to break down later.

5. You need to know when to have a private caucus – when to take the parties aside. And then you do so with all of the parties. This can be very effective – you can give them a sense of what will likely be acceptable to the other side, and what they’re true BATNA is – their “Best Alternative To a Negotiated Agreement.” For example, if I hear people say, ‘Well, I really don’t want to negotiate because if we go to court we will win,’ I can sit them down and say, ‘Based on my experience you aren’t going to do as well as you think, and it’s going to cost everyone 10 times as much. So even if you don’t get exactly the agreement you want, you’re going to get it months or years earlier, and save a lot of money and anguish.’

6. Shuttle diplomacy – being able to effectively shuttle ideas and offers between the parties – is another skill. Sometimes parties will say, ‘Well, offer this to them,’ and I might suggest modifications that will make it more palatable to the other side. Sometimes they’re subtle changes in the wording or the order in which items are offered. The challenge is that a mediator obviously can’t give away any confidential information, so giving guidance to parties is a delicate business, and you have to keep careful track of where you obtained certain information and what needs to remain confidential to one party.

7. Finally, I think it comes down to your own personality and how you relate to other people. Credentials are nice, but does having a Ph.D. really make me a good mediator? Not really. What makes you a good mediator is doing mediation, and you probably learn more from your mistakes than anything else.

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