We have a number of ways of thinking about this that we think might prove useful. The first is not to fall into the all or nothing trap. That is, either strict conformance to the model or abandoning all efforts to use the model. There are many in between choices that can lead to incremental acceptance on the part of the mediator, parties and lawyers. For example, looping is something that is helpful in all contexts where communication needs clarifying, particularly in situations where the mediator observes there seems to be either a mistaken or lack of understanding on the part of a lawyer or party. A simple step is for the mediator to loop. A second step to be done only with an agreement by all participants is for the participants to loop each other or for lawyers to loop each other just to clarify and demonstrate understanding. This second step doesn’t need to be presented in the beginning as a required part of the mediation process but offered as one possibility that may be agreed upon later in the process.
A second crucial example is the development of the understanding of what is important to the parties. The first step is to explore the situation and understand it from the parties’ perspectives. The second step is to delve deeper into the parties’ perspective, possibly to the point of the meaning underlying the conflict. The third step is to frame the understanding of what is important and the meaning for the parties into a list of interests for each. Each of these steps would need to be the subject of agreement between the mediator and the parties if they are to occur. Each step opens the door more widely for the conversation and basis for decision making to change from simply a distributive to an interest based discussion.
What is most important in all of this is that as mediators, we don’t require the parties and lawyers to work in a way that makes sense only to us. At the same time, we don’t give up and go to the other extreme of simply trying to please the parties and/or lawyers when we feel we would be abandoning process options that might be helpful and that we feel can help. It is crucial not to make assumptions about what people are willing to do about process without having a full conversation. Initial autopilot resistance may not turn out to be real and easy compliance with the mediator’s ideas may end up in passive resistance. A full conversation requires courage on the part of mediator to be willing to fully describe how you would like to work and why, and to listen deeply to how the parties and lawyers want to work and why. Even more important than what you say to everyone in the room is how you are in your relationship to them. If you like the understanding model because it is more respectful of others, be respectful. If there are other values that touch you about using the model, your words and conduct should be consistent with those values. The quality of your presence is an intangible key element of the discussion.
For example, for the question of everyone sitting together in the same room, it is quite important that the specifics of the situation and the parties’ needs provide reasons for meeting together. One reason that is almost always present is to put the parties in the position of making decisions together. It’s much more likely that will come about if they are participating together in the same room. Second, if there are particular misunderstandings between the parties that either or both parties want to clear up, being together is both an efficient and essential way for this to come about. Third , if there are elements beyond a monetary settlement that require a future relationship between the parties, either ongoing or just to implement the agreement, participating together may help them build a base for future interactions. These as well as other factors are all part of what can be explored in a full discussion about whether to meet together in the same room.
In these discussions, the mediator needs to be ready and willing to be transparent about how they would like to work with the lawyers and parties and be ready to engage in genuine dialogue with everyone so that if there are differences about process, the mediator is a party to the process discussion and open to working through the differences. What we think does not make sense is to avoid contracting altogether – It is through contracting that the possibility of working with all or parts of the Understanding Based model can become real and mutual.
Tips for Contracting about the Understanding Based Model
1. Practice by writing what you would like to say to parties and lawyers about the way you want to work with them. We are not suggesting that you read what you have written out loud, but that writing will give you clarity in advance before you are dealing with their reactions.
2. Convey authenticity by making your approach to mediation feel like it’s yours rather than you imitating someone else. Take what you learned in our training and make it your own.
3. Demonstrating receptivity rather than defensiveness will encourage others to do the same. When someone questions or criticizes what you have said about how you want to work, listen carefully to them and be open to asking questions to more fully understand their concerns and continuing a dialogue about the process options.
4. If you have been using the Understanding Based model for some time, write about it on your website or submit a blog to us so it feels more alive in you and more natural, which will then be apparent in your contracting discussions as well as help others interested in the model.