Does the Mediator Matter?

“I’ve had it with you attorneys! Write up your own agreement!”

And the mediator stormed out of the room. Stunned, the four of us, two attorneys and two clients, sat there for quite a while, looking at each other. In the end, that’s just what we did: write up our own agreement. The parties had already agreed; the attorneys had already agreed; we just couldn’t get the buy-in from the mediator, who had been trained to avoid jargon, and refused to write our agreement as we wanted it written.

What the heck?

The mediation process, as we know, is powerful. Moving through the stages, “the process” serves to de-escalate the emotionality between the parties; and to help them look at interests, rather than holding steadfastly to inflexible positions.

In our case, the mediator was, in fact, subverting “the process” with her own inflexible position. She had fallen prey to the underlying anxiety in the system, and reacted by over-functioning, trying to control the specific language in the agreement. She had snatched defeat from the jaws of victory.

Mediation trainers regularly admonish their students to “honor the process,” and to “trust the process.” Essentially, this means the mediator properly goes through the Stages of Mediation, without taking any short-cuts, expecting that “the process” will take the parties to a place where they are able to come to agreement.

Additionally, the mediator must be cool, calm, and collected. He or she must be unflappable, for "the process" to work its magic.

Even with the best mediator, parties are not always able to come to agreement. This can be due to several reasons:

1. It is simply the wrong time for these parties to even attempt to come to an agreement. Their emotions are too high, and they are unable to see their interests because they are desperately clinging to their positions. A little tincture of time may resolve this problem.

2. The parties are in an un-resolvable “high conflict” relationship, and mediation is not the proper venue to resolve their conflicts. Perhaps ever. There are some “high conflict” parties who are unable to resolve their differences, mediation be damned. For these parties, the judge serves as an unbiased final arbiter. This is the best of all possible outcomes for these parties. Mediation is not for everyone, though it is always worth a try.

3. The mediator is not sufficiently “differentiated” to sit comfortably with the anxiety the parties bring to the table, and is, therefore, unable to “honor the process.” The mediator may attempt to excessively control the mediation; or may back off too much, leaving the parties to their own ill-fated devices.

In his book, “Applying Family Systems Theory to Mediation,” Wayne Regina discusses how the mediator’s level of differentiation” can influence the mediation process.

Differentiation, as defined by Dr Murray Bowen, is a way of being “centered . . . not easily reacting to the reactivity of others,” being "emotionally mature, avoiding over-functioning or under-functioning," balancing “the individual and togetherness” forces, and being "an individual while still maintaining connected-ness to the group.” In sum, the differentiated mediator is a calm, thoughtful presence, able to bond with both parties, while not overly engaging with either. His or her task is to absorb the anxiety of the system without reacting to it, or becoming a part of it, which, of course, is easier said than done.

The more differentiated mediator will be able to insert himself or herself into the emotional triangle the parties have created, without succumbing to the emotionality of the system. It is a fine balancing act, which the parties valiantly strive to topple throughout the mediation.

According to Regina, “the emotional functioning of the system’s leadership is the single most important variable for effective functioning of the system and, in mediation, the mediator is the leader.”

Generally, it’s the mediator working to keep the parties’ hyper-arousal in check, not vice versa. When anxiety becomes high, the fight-or-flight mechanism kicks in with the parties, and all bets are off. One party may stomp off. Or blow a cork. A mediator who can maintain the calm in that setting will make great strides toward agreement. Even if emotions escalate, a calm mediator has a chance to resuscitate the mediation by caucusing with the parties, giving them some time and space to re-group, as well as to communicate information that may not be suitable for communicating with the entire group.

I can never forget Mediator Zena Zumeta’s go-to response to unexpected communications from one party or the other.

“That’s interesting,” she says, which, of course, it is.

How people think, how people react, how people resolve their differences, is extremely interesting. And the mediator has a “front row seat to the greatest show on earth, the human race, with all its triumphs and foibles.” Observing the parties, rather than engaging in their emotional system, will allow a mediator to maintain his or her neutrality.

A mediator who is interested in what the parties have to say will not be over-attached to outcomes or to one party over the other. He or she is living in the process. Rather than focusing on attaining a “perfect” agreement (in his/her own mind’s eye) at all costs, he/she is focused on listening, respecting, and helping the parties to understand the intersection of their interests and commonalities. Agreement is not the goal: appreciating the other side’s interests is. Agreement is a secondary benefit to appreciating the interests and point of view of the other side.

A skilled mediator will be able to hear both parties while not taking sides, and will be able to absorb the excessive anxiety in the system while redirecting enough of it back toward the parties, giving them the impetus to find commonalities and agreement. Strategically, the mediator will have the parties work side-by-side when it’s time to develop their agreement, a technique borrowed from structural family therapy, to encourage the parties to “work together.”

Ours was probably not the only mediator in the world to walk out on a mediation, and she may even have been correct that jargon is not acceptable in a mediated agreement, but she did not “honor the process” of mediation. Rather, she succumbed to the anxiety in the system, putting her own reactivity ahead of the parties’ needs and interests. If only she had simply observed, even just to herself, how interesting it was that the parties and their attorneys insisted on jargon in their agreement.

The mediator matters. More importantly, the mediator’s level of differentiation and emotional maturity really matter.