"Mediation DON'Ts”: The Importance of the Ground Rules Prevention

For a mediation to be successful, the parties will rely on their mediator expertise to help them design their own solution to their dispute but they also will need to understand and embrace what we as mediators call “ground rules”. These rules all gravitate around the same aim i.e., helping the participants to communicate efficiently and constructively to reach a common ground where they can settle their conflict without going to court.

Below is a recap of the most common ground rules we use as mediators. Read and learn about them. You may also be able to apply some of them in your everyday life to improve your communication with others.

1). Don’t use bad language:

While communication in mediation can become frustrating when other people aren’t agreeing with you, the use of swear words never has a positive effect. When using foul language against someone you are attacking the person. As a result, the person will be on the defense and less likely to listen to what you are saying.

TIP: If you find yourself becoming angry when listening to the other participants, ask your mediator to take a break.

2). Don’t be negative about the possibility of reaching a settlement

Many times, at the beginning of a mediation session you cannot imagine a way that the case can be resolved. This is normal. That said, it is usually better not to verbalize your misgivings. Mediation is a collaborative process. Therefore, while you initially may not be able to see a path forward, bear in mind that it is always possible that after working with the other parties a resolution that may have not occurred to anyone will be created for the benefit of all.

TIP: Assuming the burden of finding “the solution” on your own is not what mediation is about. On the contrary, collaboratively designing a solution that works for everyone is the sole purpose of mediation.

3). Don’t bring massive amounts of documents and expect everyone to read through them

Discussions in mediation usually focus on the big picture and trying to find solutions to the overall situation. While documentation can be helpful, most of the time you can paraphrase what the document says rather than expecting everyone to speed time reviewing every detail of the document.

TIP: Being prepared to clearly state the facts contained in the documents in your possession is usually more helpful than wanting everyone to read them.

4). Don’t storm out of the mediation if you become angry

Mediation can be emotionally charged. Tempers can flare and rather than continue with the mediation process, it may seem better to just walk out of the mediation. However, if you leave the mediation then for sure there will not be a resolution reached and the case will most likely end up in court.

TIP: If you feel the situation is becoming too intense, ask to speak with the mediator privately to explain why you are angry.

5). Don’t “just say no”

In mediation, the mediator will ask for ideas and suggestions as to how the situation might be resolved. Some of the suggestions will be good ones and some will not. While not all suggestions will be viable, it is important to listen carefully to these proposals and make your own. If you simply say “NO” to all propositions that are presented without making any of your own, you will be seen as being unwilling to help to resolve the conflict.

As a result, you are running the risk that the other party believes that you are not interested in working to amend the situation and will stop trying. By acting this way, you are not only closing the door to the possibility to settle the issue out of a court of law but chances are that you will most likely be held responsible for giving no other option to the other party than filing a lawsuit against you.

TIP: You don’t need to agree with every suggestion that is made, but you should listen carefully and evaluate the idea that is being presented before rejecting it. Be ready to comment constructively on the solutions proposed by others and also make your own suggestions. By doing so you will show you are committed to trying to solve the dispute amicably.

6). Don’t nibble

Many times, in mediation when a settlement is reached one person will want to change the agreement a little bit to give themselves a little more. If the change is agreed to, the same person will then again ask for another small change to benefit themselves, and another and another, and so on. This is called “nibbling” and while it may result in more concessions for the “nibbling” party, it will result in frustration and ill feelings towards that person. The nibbler will be seen as someone who cannot keep their word as he/she agreed to the settlement but now wants to change it.

TIP: When you commit to a resolution, STOP. Don’t keep asking for more concessions from the other side. Don’t be a nibbler.

7). Don’t try to convince the mediator that you are right

The mediator is a neutral third party whose role is to facilitate a discussion between the participants of the mediation. The mediator does not make decisions. Therefore, attempting to convince the mediator of the merits of your position is a waste of time. On the contrary, be prepared to explain to the other parties how you came to your position in a way that they can understand and appreciate. They may not agree with your conclusion but at least they will get a chance to fully apprehend how you arrived at that conclusion which may open the door to further discussions toward resolving the issue.

TIP: The mediator does not make decisions. Therefore, the persons to whom you need to convey your ideas are the other parties, not the mediator.

8). Don’t offer $1.00

If you know that you are going to have to pay money to the other side, don’t offer them $1 to settle. They obviously will not agree to such a settlement and will become very insulted that you made this ridiculous offer. You will be viewed as someone who is making a mockery of the mediation process and not being willing to engage in serious discussions. “Low ball” offers almost always end the mediation session for 2 simple reasons: The other parties will feel insulted and will believe that you are not willing to acknowledge their position.

TIP: If you make a good faith offer (which may be less than the other person is expecting) at least the other party will consider your offer and not be insulted by it.

If you are stuck in a family dispute and don’t know what to do. Contact us, free of charge, and find out how we at MPSV can assist you in finding a resolution to your conflict.