Stage Three: Discussion

After opening statements are concluded, your mediator will likely move the mediation into a discussion stage, during which you and the other party can start talking directly to each other.

Neighbor Dispute: Ms. Ferraro: “Mr. Rafferty, I don’t know where you got the idea that I have a reputation in the neighborhood for being a complainer, but I can tell you that’s just not true. I’m a quiet person and mind my own business. Since I moved into my house five years ago, you are the first person who has given me any reason to complain about anything.”

There is a tendency for things to get out of hand during these early stages of discussion, so the mediator will be working hard to keep the discussion under control. The mediator may have to remind one or both of you not to use uncivil language or make personal attacks. Beginning at this stage, your mediator will likely use one or more of the following techniques to control and advance the mediation:

• Investigation: In considering the evidence and statements of each party, the mediator might find information that demonstrates potential holes in a party’s argument. For example, in a dispute over property rights, by examining a map brought by one of the dispu­tants, the mediator may discover an error in measurement that casts new light on the position of the complaining party.

• Empathy: By showing a willingness to hear and discuss matters that concern the parties (even if those issues are not technically relevant to the dispute), the mediator builds trust and helps engender a cooperative attitude. For example, in a case where the president of a subsidiary of a large conglomerate terminated an employee, the mediator could listen patiently as both the president and the former employee complain about heavy-handed tactics used by the parent company.

• Persuasion: Slowly at the beginning, then more intensively as the session progresses, the mediator may encourage disputants to embrace one or more possible terms for settlement. During private caucus, for example, the mediator may say, “John, I can’t tell you what to do, but I think this plan will satisfy many of the needs you’ve expressed.” You are more likely to see this technique used by a mediator who has a more evaluative approach to mediation, as opposed to a mediator who seeks to facilitate the parties’ ability to arrive at their own agreement. (For more on mediator styles and philosophy, see Chapter 3, Section D.)

• Distraction: The mediator may try to relieve tension during the session by use of humor, anecdotes, or just plain diversion. “You know,” the mediator might say, “this reminds me of a story....”

• Invention: If no workable options for settlement emerge from the disputants, the mediator may propose some of his own. As with “persuasion,” you are more likely to see this technique from a mediator who takes an evaluative approach to the job.

1. How the Mediator Organizes the Issues

Once things are on a fairly even keel, your mediator may attempt to put the issues in some kind of order. A common practice is to tackle the easiest ones first. This helps build up the disputants’ confidence in the mediation process and in their own ability to address their dispute in a reasonable and productive way.

Lease Dispute: Mediator: “Well, from everything you two have told me, it sounds like we need to focus on this question of whether United Tea should be repaid the $7,000 given to Ms. Sherman’s real estate firm as a security deposit. Ms. Sherman says employees of United Tea damaged the reception area of the office, and therefore some or all of the deposit should be used for cleaning and repairs. Before we talk about that, however, let’s see if you both can agree about the condition in which United Tea left the other rooms in the space it rented.”

Often, your mediator will try to narrow the number of issues in dispute.

HOW THE MEDIATOR LOOKS FOR HIDDEN ISSUES

Often, disputants do not reveal an important issue to the mediator, either because they do not want to or because they honestly do not recognize it. In disputes between business partners, for example, it is often easier for the parties to focus on “nuts and bolts” business matters like sales, profits, and control of decision making than it is to examine underlying issues such as personal habits and styles, career goals, personal financial needs, self-image, recognition outside the company, or pride.

Through gentle but direct questioning and careful listening, a skilled mediator can often find clues to these types of underlying issues. For example, in one dispute between co-authors of an Italian cookbook over who owned several key recipes, it didn't take long for the mediator to figure out that one side needed money and the other side had money. Even though the parties were convinced that they were arguing over the principle of who developed the secret recipe for killer garlic bread, it turned out that a little cash moving from one to the other made the problem disappear.

In neighborhood disputes, particularly, there are often hidden issues. For example, in our neighborhood case, if Mr. Rafferty (who hosts the pool parties) hadn't mentioned the concern he has with Ms. Ferraro's unleashed dog in his opening statement, the problem never­theless might have been festering in the background, waiting for a skilled mediator to discover it through active listening.

2. Your Chance to Question the Other Side

You probably feel that the other party failed to address some important issues—or answer some of your questions—in the opening statement. Although your general mediation strategy should be to tell the story from your point of view and not worry too much about the other side's “misstatements,” you may have important questions. If so, this is the time to ask them.

When both opening statements are complete, most mediators will ask if either party has questions or wants to clarify any point. But because some mediators skip this step, be prepared to speak up if you want to ask questions.

Neighbor Dispute: Ms. Ferraro: “There’s something I don’t understand, Mr. Rafferty—when I called your home to complain about the noise, why didn’t you show me the courtesy of taking the call yourself and talking with me about the problem of a few out-of-control guests? Instead, you let one of your guests handle it. If you didn’t want me to call the police, I don’t see why you did this.

During this give and take, listen carefully to the other party. Just as you did during the opening statement, try to discern from the discussion what her real needs are and what she is seeking from mediation.

3. Calling Witnesses

In most mediations, there is no need for witnesses. The facts may be in dispute, but proving who’s right and who’s wrong is not what mediation is about. However, there are some situations in which a witness’s atten­dance will be helpful, such as when the other party denies crucial facts and the mediation isn’t likely to progress until they are established. For example, you may need to establish the cause of an electrical fire in your home (witness: consulting electrician) or the seriousness of injuries you received in an automobile accident (witness: physician). As noted in Chapter 5, Section C, you do not always need to bring a “live” witness; sometimes, a letter, memo, or report from the person will do the job.

Many mediators ask the witnesses to wait outside the room during opening statements. During the discussion stage, the mediator will call them back in and, in the presence of both parties, invite them to tell what they know about the dispute. As the disputants were allowed to make their opening statements without interruption, so the witnesses will be given a chance to say what they came to say:

Neighbor Dispute: Mr. Rafferty’s Witness: “I was at the party in July where Mr. Rafferty’s neighbor says she called to complain about the noise and that people were rude to her. But you should have heard how nasty she was when she called and some of the language she used. I’m not going to repeat it here. If she’d asked us nicely to turn down the music we would have. But when someone starts off by calling you a bleep, well, forget it. The point is that most of the folks at the party—we all work together—are not the kind of people who would purposely disturb someone. She’s got the wrong idea about us.”

If you have any questions of the witnesses, you can usually ask them directly. The mediator may ask a few questions, too. After that, the mediator will probably tell the witnesses that they can go home. Unlike witnesses in court, who are sometimes asked to wait around just in case someone wants to recall them to the stand, witnesses in mediation are allowed to leave. The rest of the session focuses exclusively on the disputants and possible solutions to their problem, not on rehashing the facts underlying the dispute.

D.