Divide and Conquer or Collaborative Problem-Solving? Effective Mediation Techniques

Many Mediators, including myself, will think about splitting principals away from their advisors, including lawyers, in mediations that look like they will become problematic to solve. I always warn parties in the opening session that I may do this, but it never ceases to amaze me how blood pressures rise as soon as I suggest that the time has come to match up experts, lawyers and the decision makers themselves.
As an example, let us assume that you as the Mediator suspect that a breakdown in a personal relationship and the subsequent developed lack of trust are the real root causes of the dispute. A principal is unlikely to be comfortable discussing such issues in front of his or her lawyer and/or experts and it might be a good tactic for the Mediator to meet the principals together, away from the main group. In session you might wish to explore the history of the dispute and invite both principals to tell you when the dispute arose, why it arose and, with the benefit of hindsight, how it might have been avoided.
If your assessment of the situation is correct and it really is a breakdown in a personal arrangement that is the root cause of the problem, you should expect to hear very different stories from the principals and the mediation will then probably take a very different route from the one you expected. As an idea, you might want to think about inviting the principals to suspend their discussions on the historical dispute and to invite them to discuss how they would do things differently going forward in a continuing relationship.
This approach “parks up” the historical dispute for an hour or so and, if the principals can agree a way to work more effectively going forward, then both parties will become highly motivated in the negotiation stage of the mediation to settle the dispute you are concerned with because you have 'managed' the parties into subordinating the historical dispute behind the benefits to be had from an ongoing future trading relationship.
If the root cause of the dispute is due to a difference in legal positions, who ever really knows how a court case might unfold? For experts who have become entrenched in their opinions it might be better to meet these team members in private together to question them and invite debate away from the rest of their respective teams. And if you don’t agree with what you hear? Then think about meeting the lawyers or experts “one on one” to reality test them on the views of their teams so they do not begin to feel isolated and become defensive in their approach to the mediation.
Splitting and matching mediation participants can be a helpful tool in a Mediator’s armoury. Just remember to advise the parties at the outset that you might do this and think carefully about what you are attempting to achieve in the process.
Peter Vinden

Peter is an experienced professional in the construction industry with particular expertise in quantity surveying and the commercial management of contracting organisations.