In a previous blog, I posted about debunking mediation myths in which I explored one of the emotional barriers to mediation – a feeling that agreeing to mediation is a sign of “weakness.” I have been pondering a lot about other emotional barriers to conflict resolution, this time, during the mediation itself. Agreement to mediate is a great first step, but getting to a deal will take work during the mediation process and mediators can assist with navigating the difficult emotions that often arise. For represented parties, legal counsel has also a vital role to play in ensuring the parties feel comfortable and trust the process.
1. Anger and Resentment
These are common emotions that surround unresolved conflicts. Left unchecked, anger and resentment can escalate tensions and derail productive dialogue. These feelings can sometimes even transfer to legal counsel representing the parties. While emotions are allowed and can be necessary and productive at mediation, a mediator can, and should, defuse a volatile situation and create a safe, supportive environment for communication. One of the ways I do this is by creating rules of engagement that both parties can agree on, taking a break when those rules have been breached and speaking to the parties separately, as well as encouraging mutual active listening.
2. Fear and Uncertainty
Fear of loss, rejection, or further conflict are common during mediations. Parties may be hesitant to express their true feelings or needs due to fear of vulnerability or judgement. I help alleviate fear and uncertainty by providing clear guidance and reassurance throughout the process. By outlining the mediation process, setting expectations, addressing concerns and reminding the parties that they are empowered to come up with solutions in a safe forum, mediators can help parties feel more comfortable to participate fully.
3. Lack of Trust
Trust is essential for effective mediation, yet it can be challenging to establish, especially in high-conflict situations where parties come to the table with feelings of having been betrayed or wronged. Sometimes, the very purpose of the mediation is to rebuild that trust. I work towards rebuilding the trust between parties by creating a process they can trust, as a starting point. Also, by demonstrating impartiality, confidentiality, and empathy, and by inviting the parties to actively listen to each other’s perspective. I have found it common that parties have been unaware of each other’s perspective until they hear it for the first time during a mediation or read the other party’s mediation brief.
A mediator can skillfully validate concerns and reframe contentious issues in a neutral manner to foster trust and credibility. Sometimes though, as in the case of many employment disputes under litigation where there is no longer an active employment relationship, the purpose of the mediation is not to build trust for an ongoing relationship, but to work towards a resolution that puts an end to the existing litigation. By assisting the parties to stay focused on outcomes and evaluate their best alternative to a negotiated resolution, a mediation can be successful in reaching a lasting resolution of the issues even when the trust is not restored.
4. Resistance to Change
Embracing change can be daunting, especially when it involves letting go of deeply held beliefs, values, or expectations. Parties may resist proposed solutions out of fear of the unknown or reluctance to relinquish control. One of the very first mediations I did back in 1999 as a law student in Bogota involved a man who had loaned money to a woman. He went to see her several times per week to ask for the money back. She felt harassed and overwhelmed. When speaking to the man alone in a breakout room, he shared with me that those visits to discuss loan collection had become part of his routine. He was a retiree, and he was lonely. Any resolution meant his routine would change and he would have to let go of seeing the woman. He did not want change and his reluctance to change was a barrier to resolution. As a mediator, I can assist parties overcome resistance to change by reframing perspectives, exploring alternative options, asking questions and highlighting the potential benefits of resolution.
Emotional barriers are inherent in mediation, but they can be overcome. With the guidance of a skilled and empathetic mediator, parties can navigate their emotions, overcome obstacles, and find meaningful resolution to their conflicts.
Thinking about mediation? Forte Workplace Law has a growing mediation practice with mediators Sara Forte, Catalina Rodriguez and Jess Hadley. Contact us for details on our offerings and availability: [email protected] or call us 604-535-7063. This blog is not intended to serve as legal advice, and only provides general information.
Catalina Rodriguez is a workplace investigator, mediator, and counsel to both employers and employees.
This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].
