#69 A Dialogue: Overcoming Mediation Resistance

overcoming mediation resistance

The dialogue below is fictitious, but it is based on an experience I had as a mediator. It illustrates how mediation resistance can manifest, for example over encountering the other party

The context is a court mediation program in which the mediator does not have the opportunity to conduct pre-mediation meetings. The Defendant and her support person burst – uninvited – into the mediation room about five minutes ahead of the scheduled mediation.

The mediator remains non-defensive and accepting of the Defendant’s avoidance manoeuvers, addressing them one-by-one.

Defendant: I can’t stay, I’m in a lot of pain. I have to go.

Mediator: Why have you come at all?

Defendant: The letter we received in the mail said we had to.

Mediator: Most people are not as astute as you in noting that you have met your statutory obligations by showing up at the mediation room. You are correct that you have no obligation to stay.

Defendant: My back hurts, I have to go.

Mediator: I’m concerned.

Defendant: Why?

Mediator:  I think you are making an uninformed choice. I would like the opportunity to tell you about mediation for a few minutes, then I think you could make a more informed decision. If you leave because you are in pain, you will know fully about the opportunity you are walking away from.

Defendant: I made him [the Claimant] an offer, but he didn’t accept it. I don’t know why.

Mediator: That’s a great start. Mediation would be a perfect opportunity to ask him why.

Defendant: My back hurts, I have to go.

Mediator: My back’s never hurt as much as yours seems to be. It must be very difficult. In case you want to sit down, I am going to raise the seat on your chair so that it is easier for you to sit if you wish to do so.

Defendant: I have to go, we only parked for 20 minutes.

Mediator: No problem, it will only take a few minutes or less to tell you about mediation. An agreement you can reach here today can be written up by me and it will be just as binding as a ruling by a judge. The way to reach agreement is different, but the resolution is just as enforceable. Mediation requires that everyone in the room follow the terms of the mediation agreement.

Defendant: I offered him $5,000 to settle the lawsuit. I thought that was fair.

Mediator: It might have been, but for some reason we don’t know yet he did not want to accept your offer. Sometimes people have things they need to say before they are ready to settle.

Defendant: Everything started out alright. Once we had a small disagreement his personality totally changed and his true nature came out. By chance one of our neighbours down the street also had dealings with him. She says he became totally unreasonable with her and several people she knows as well. She hired a lawyer.  I don’t want him to keep getting away with –

Mediator (interrupting): I have to say something. It sounds exasperating. I imagine it has been very inconvenient to try to stop him. Many people tell me about situations like yours, and how they have never had to deal with such a person.  Mediation would be a great opportunity to speak with him about what he has been getting away with. How is your back right now?

Defendant: It hurts so much.

Mediator: I have been listening about your back and parking and $5,000. I would appreciate an opportunity to finish telling you about mediation. Then you can decide whether you would like me to bring him into this room. If we go ahead I would go over the agreement to mediate form. We would all sign, then you could ask him your questions.

Defendant: (to her support person) What do you think George?

George: You said you didn’t want to have to talk to him, but this might be a chance to end the whole thing.

Mediator: If you are going to stay, you don’t have to sit all the time. You can stand and sit whenever you want. I can explain about your back before I bring him into the room.

Let me know if there is anything else I can do to help the pain.

Defendant: There is nothing anyone can do. [She sits down, George is still standing]

Mediator: Possibly not about your back, but you can deal with this lawsuit here today if you wish. You will be able to stop mediation any time you want if you think it is not working. I can step out for a minute if you two want to talk it over without me in the room.  More than 50 percent of people walk out of here with an agreement. What do you think, shall I leave you to talk it over for a few minutes?

Defendant: Okay, but I don’t want him to yell at me.

Mediator:  I will talk to him about not yelling before bringing him into the room. I don’t think he will yell here today.  If worse comes to worst, I will simply invite you two to leave the mediation room to get away from his yelling, then I will come out and talk to you after I deal with him. Could you live with that?

Defendant: Let’s give it a try.

Mediator: Thank you for being flexible. It makes it easier to reach an agreement.

Defendant: Okay.

Mediator: I am going to go and get him now.

Defendant: Okay.

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Here is what I think the mediator demonstrates in this dialogue, which you may find applicable to other situations where someone is resisting involvement:

-The mediator stays focused primarily on the mediation process as opposed to the content of the dispute

-The mediator accepts resistance to mediation, not knowing whether it is a manifestation of defensiveness or not

-Rather than dissuade or try to change the Defendant’s mind regarding participation, the mediator focuses instead on providing and highlighting choices

-Through providing choices, the mediator offers optimistic possibilities, connecting with any hopes the Defendant may have

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