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Should a mediator be a 'truthsayer' or an impassive facilitator?

Clients decide to resolve disputes through mediation for a variety of reasons. A successful mediation can offer significant cost savings, and its non-adversarial process can preserve or even improve family and business relationships. In family law especially, may are attracted by mediation’s confidentiality and privacy, as it entered into the public record like court proceedings.

Whatever their motivation, most don’t have much experience with mediation and aren’t sure what to expect. The idea is that a neutral mediator helps the parties craft a settlement agreeable to all. But what does “neutral” really mean?

If working out a settlement were a simple matter of facts and rules, clients could use computer programs to do it. In reality, whether they involve child custody issues or the interpretation of a construction contract, disputes are between human beings. Beyond skill in the process, therefore, a good mediator brings indispensable experience and insight to the table, often along with valuable legal knowledge.

During the mediation process, mediators often notice an “elephant in the room.” -- an unspoken, perhaps unrecognized sticking point that is keeping the parties from coming to agreement. Sometimes identifying that unspoken truth breaks the impasse. In other cases, however, a mediator’s open recognition of that “truth” can be damaging.

For example, when a mediator correctly identifies the hidden “elephant” and acknowledges it openly, it can embarrass one of the parties or even give the impression that the mediator has taken a side. Once that happens, any chance for resolution may evaporate.

Also, even the most perceptive mediator may be wrong, or the issue the mediator sees may be something the clients can’t see or don’t understand. Should the clients conclude that the mediator is too far off track, they may lose trust in him or her, or in the process itself. Yet a mediator who recognizes the “elephant” and says nothing may be perceived as untruthful or lacking in skill.

If the clients themselves are apparently unaware of a hidden sticking point, the mediator may have no real option but to be a “truthsayer,” as one marital mediator recently pointed out in the Huffington Post.

Ultimately, the success of any mediation depends on truth, and on respect. A mediator who consistently demonstrates respect for all parties can often overcome momentary discomfort among the parties and build a cumulative sense of honest understanding that ultimately leads to resolution.

Source: The Huffington Post, “Mediator as Truthsayer,” Laurie Israel, Oct. 23, 2013

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