My Approach to Mediation

The “Whatever It Takes” Approach

In the business arena, one approach puts closing the deal ahead of nearly everything else. The primary goal is settlement, and pressure is considered an acceptable tool for achieving it. In its more extreme form, this mindset leads the mediator to view the people at the table not as partners in a process but as obstacles to a settlement. The human cost of the conflict—including stress, damaged relationships, and lingering resentment—receives little attention.

At a statewide mediation conference in Texas, a panel of top lawyers was asked what they want from mediators. Their answer, in essence, was someone who will "bang heads" and get their clients to settle. Half a world away, an Australian mediator at a workshop described the same mindset this way:

“The parties come to me because they want to be out of there with a settlement by 6 p.m. I give it to them. And if it takes a little arm-twisting, so be it.”

The Non-Directive Approach

Other mediators recoil at this pressure and swing to the opposite extreme, known as the non-directive approach. The mediator steps back and lets the parties steer, with no stake in whether they settle or not. One mediator sheepishly admitted:

“I admit it: I have tried to nudge participants in mediation towards agreement. I know we are supposed to be indifferent to whether or not agreement is reached.”

Success is judged by the quality of the exchange rather than by an agreement. In my view, this has little to do with peacemaking. In fleeing the settlement-obsessed mediator, its proponents ran straight into another extreme: a mediator with no commitment to resolution at all.

The parties may leave understanding each other better, yet the problem that brought them to the table remains. In business, that is costly. Partners still disagree on the company’s direction. Employees still cannot work together. In all cases, the dispute keeps draining time and money. People in conflict deserve a mediator who will help them reach a decision that removes aggravation from their lives.

The Reconciliation Model

Mediators who use the Reconciliation Model, myself included, start from a different premise. The aim is to resolve the dispute and to restore the relationship. Resolving the dispute means working through the specific issues until both parties reach an agreement they can accept. Restoring the relationship means addressing the hurt, mistrust, and misunderstandings that built up during the conflict, so the parties can work with each other in good faith going forward. An agreement reached without that second step often breaks down the next time tensions rise. When it does, the parties may end up worse off than when they started, because they no longer believe there is any hope.

I have seen what becomes possible when both steps are taken. One participant in a multi-party conflict I worked with described it this way:

“I was skeptical until I saw the process work. I saw the two major antagonists apologize and hug one another.”

Results like that depend on how the process is set up from the start. As I wrote in 2013, “If the parties understand that the goal of the mediator is to help them resolve their conflict and establish relational harmony, and they give their permission to participate in such a process, the mediator is free to use his or her creativity, insight, interpersonal skills, and energy to help forge a path forward.”

If you are facing a conflict of any kind, the approach your mediator takes matters enormously. If reconciliation is your goal, I invite you to call me, Dr. Ken Newberger, for a free consultation: 561-490-4991.