Don Sinkov of ydm.practicemarketingnetwork.com talks about his first experience mediating which illustrates how not to.When I was first trained as a mediator through an internship at NYU, I was sent to a government agency to see how they resolve disputes. I worked with the head of the Alternative Dispute Resolution (ADR) Department. He was going to show me how he resolved disputes, using mediation. He planned to introduce me as his co-mediator, however, he also made it clear that he was pretty much going to be driving the bus. He said, “I’m going to show you how we do things around here.”

Two women came in the room. One woman was bringing charges of harassment against the other. She was really aggressive, loud and banging her fist on the table. She threatened to start a lawsuit and go after monetary damages. The other woman started yelling, too, and pretty soon we had pandemonium. It was hard to keep control and calm them down, so my trainer put them in separate rooms. He took me aside and said:

“This is what I do with every case. Folks come into the room, and whether they are yelling or not, I separate them right away and I go back and forth. Shuttle mediation, you know, put them in separate rooms, go back and forth and try to get them to agree. If you put them in the same room, they just yell at each other.”

So my trainer said to the employee bringing the charges,

“You know you have a crappy case. You are not going to get any money. There could be repercussions because the employer is going to be angry that you brought these charges against another employee without trying to work it out with your supervisor. Clearly, you had no intention of working things out at all.”

Then he said, “Okay, let’s go talk to the other one.” My mouth was hanging open, and I was thinking how horrible this was. We went to the other employee who was being accused, and my trainer said,

“Listen, whatever you did, you are wrong. You should never have done it and you could end up being in very hot water with the employer for doing what you did. So, you better apologize.”

At this point, I thought, “Wow, if this is mediation, maybe this isn’t for me.”

We brought the two employees back in the same room. The one employee apologized to the other, and the other one agreed to drop the charges, and that was it. That was the resolution. Of course, there was no resolution, and whatever was creating the problem in the first place was not addressed in any way, shape or form, so it still existed.

People have some pretty strange ideas of what mediation is. I see it over and over again when dealing with government agencies and large groups and corporations. Shuttle mediation alone, in my opinion, isn’t true mediation. You are just separating the two halves of the problem, and are not really resolving anything – beating each of them up to get them to compromise. Does anyone think this is really mediation?

 

Comments From Social Media

Thanks for your article, Don. What you describe is certainly not mediation. Here in New Mexico, we call those bully sessions “settlement conferences.” They are usually conducted by attorneys, who weigh the “merits” of the case, badger disputants into artificial compliance and declare the case “settled.” Sadly, after many years of trying to educate our judges on the differences between mediation and settlement conferences, many still use the terms interchangeably, to the great detriment of actual practicing mediators. Thanks again!

Debra Oliver, Owner, Common Ground Mediation Services

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Definitely not mediation and the likely result was continued resentment between the parties and a feeling that they had been unfairly treated

Bernadette Le Grand, Nationally Accredited Mediator

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This is incredible but not surprising! The term mediation is being used to describe practices that ignore mediation’s guiding principles and do a lot of damage to the trade.

Nathalie Al-Zyoud

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Mediation? Sounds like what happens in my son’s 1st grade class at school! I am starting a family mediation business, but I’ve been a civil mediator for the courts for a while now. We are also trained in “shuttle mediation” mostly because the bailiffs don’t want any trouble. We also have a very limited timeframe to come to an agreement and I do get frustrated when we can’t peel back the layers so future conflict can be avoided. No, that scenario is not what mediation is all about or I wouldn’t think it’s for me either. Thanks for your article!

Lisa Scholz Individual and Family Services Professional

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 Mediation remains an unregulated profession without requirements for training, supervision, or continuing education. I’m sure that this mediator ticked off the “settled” box and chalked up another victory. Meeting with parties in private sessions can be a very useful tool in mediation. However, what this mediator did is to point out each party’s WATNA without even trying to determine the issues, interests, or options or helping them to understand each other. Even when mediators are required to have completed a basic training for inclusion on a mediation roster, certificates of completion are just that – certificates that say that people have completed the training. Thanks for sharing! less

Ericka Gray

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A clearing of the air in an early preliminary meeting can be very helpful…provided the mediator keeps a firm grip on the behavior of the disputants. Allowing parties to “vent” and get the pent up emotion out of the way can lead to more peaceful joint meetings. Uncontrolled, prolonged drama and abuse can have the opposite effect. Get the parties to sign up to the rules (one set or rules I saw ended with….I promise not to hit the other party). It is also worth remembering that bad news travels up the line very slowly and the mediation may be the first time senior management has been made more fully aware of the situation. 

Peter Berry

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This “mediation,” as it is called, is what most lawyers and judges view as mediation. I am not referring to the caucusing aspect, but the process as a whole. As I said before, this is not mediation and I have been trying to draw that distinction for quite some time.

Mark B. Baer

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Amen,Amen, and Amen! I’m in the choir of joint session so support what you say, Don. It is not unknown for an atty and client to sit waiting in one room while the mediator is in the other room with the other atty and client FOR AN HOUR or more. The waiting party received nothing for their fee charges. Sometimes mediation is not as less costly as believed. There is a law firm website describing the mediation process and the separate session. It says be sure to bring READING MATERIAL as there can be a waiting period while the mediator is with the other party! Ashley, it is usually recommended there be two interpreters in the room when there is a language speaking issue.Tthis usually removes the tone of partiality in the translation and clarifies the intent of the statement. Also, in our state when there is an order of protection(OP) in a divorce case that order gets suspended for the mediation and then becomes the party’s self-determination about staying in the same room or not………

Paul Rajowsk, Mediation Discussion Group

Don Sinkov

Don Sinkov
Your Divorce Mediator
Westchester County, NY
Putnam County, NY
Phone: (914) 588-6258
eMail: Info@YourDivorceMediator.com