If you recall our Ps of Negotiation, you’ll remember Patience. Regardless of how many negotiations you’ve done or mediations you’ve handled, it’s always good to be reminded of its importance. Patience plays a pivotal role in the success of mediation and is a skill that a mediator must remember at every stage.
Patience must be exercised from the very beginning of the mediation.
It allows the mediator to accomplish two things vitally important to the success of the mediation but often overlooked by experienced mediation. First is being patient in initiating the initial session. Take the time to do a mediator’s introduction - explain the process, your role, confidentiality, etc. Mediators often jump the gun and dive right into caucusing with the parties and beginning the negotiation. While attorneys may be experienced with negotiating in a mediation session, chances are that at least one of the parties is not. Failing to explain the process to the uninitiated prevents an opportunity to build some trust and credibility with that party, which you will need later. It can even mistakenly signal to that party that you don’t care what they think or how they feel.
Another important initial step often omitted by impatient mediators is hearing from the parties – letting them tell their story.
One of the beauties of mediation is that the parties can be heard – directly – not through their attorney. They want to be heard. When they are deprived of that, we have not done ourselves any favors.
We must also tap into our patience when we want to assume an active role in the negotiations before the parties want or need us to.
Remember that our role as a mediator is sometimes passive and sometimes active. Generally, passive to start and active later. Exercising some patience at the beginning will allow us to more effectively have an impact when it is needed.
Our patience will also be tapped when the parties hit their initial stopping point.
Monetary negotiations often hit a stopping point before the parties have actually negotiated to their goal. This can occur for many reasons. Regardless, our job as mediator is not to allow the process to be terminated prematurely – before every opportunity for settlement has been fully explored. When these impasses happen, and the parties become frustrated and genuinely want to leave, is when our skills as a mediator are in high demand. This is when we reach into our bag of tricks and help them soldier on. Exploring BATNAs, evaluations, outside influences, brainstorming, and thinking outside of the box are all important tools, but without patience, they will never have the opportunity to shine.
Patience is also required when it becomes clear that the parties are not going to reach an agreement.
Just because they aren’t going to today doesn’t mean that they won’t in the future. What must happen before they can? Sometimes, it’s just the passage of time. What has happened at the mediation session may simply need to be processed. It takes time for the realities to sink in. Don’t let the parties slam the door on that happening in the future. We must stay in touch. There will likely be other opportunities for settlement discussions. We must be ready to help.