This article provides an overview of specific situations or challenges that may arise during the mediation process, necessitating the Mediator's use of particular strategies, techniques, and skills. By employing these approaches, the Mediator can effectively address these challenges and steer the mediation process back on track.

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1.    The decision maker not present in the room

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·      Requesting a delegation of powers: the Mediator may prior to the commencement of the process, request the attending parties to provide a delegation of authority, to ensure that such representative is able to make or negotiate decisions during the mediation process. In the absence of the same, and depending on the circumstances and particulars of each matter, the Mediator may suggest to the parties that they postpone the commencement of the mediation until such delegation of authority is obtained or the concerned decision maker can attend in person or be available throughout the process. This would help in setting the stage for a productive process and help lead to enforceable agreements.

·       Proposing that the representative communicates closely with the decisionmaker throughout the session/process: the Mediator may propose setting up real-time communication channels between the representative and the decision maker to facilitate immediate consultations and decisions during the process. This would enhance the efficiency of the process, and ultimately facilitate the signing of the settlement agreement by the authorized representatives.

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2.    Non-genuine participation by one or both parties

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If the Mediator suspects one of the parties is not genuinely participating, he/she should emphasize the advantages of genuine engagement in the process, highlighting the potential for a more satisfactory and sustainable resolution through active involvement. For example, the Mediator could highlight the potential cost savings, time efficiency, confidentiality, flexibility, and party autonomy that mediation offers compared to other dispute resolution methods. The Mediator should emphasize that the parties maintain greater control over the outcome of the process and may preserve their relationship (if that is of interest to the parties)which could be damaged in a litigation or arbitration process.

The Mediator should gently probe the parties’ reasons for their disengagement and address any underlying issues and needs that may be hindering their willingness to genuinely participate, and help them explore creative and mutually beneficial solutions that may not be available in court or arbitration.

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3.    One or both of the lawyers are resisting the process or have interest to take the case to Court

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·       Communicating with the parties separately: if the Mediator believes that the lawyer of one of the parties is just using the process for ticking the box, it is advisable that the Mediator meets with the parties without their lawyers and vice versa. In doing so, the Mediator could check the party's level of commitment and readiness for mediation, and address any concerns or barriers that may prevent them from engaging in the process. The Mediator could also use this opportunity to build rapport and trust with the parties, and to educate them and/or their lawyers about the mediation process and their role init.

·       Managing the lawyers’ role: the Mediator can shed light on the importance of the lawyer's role in the process and in reaching a resolution and encourage them to play an active and constructive role in the process. For instance, the Mediator could ask the lawyers and their clients to prepare a list of their interests and priorities, and to brainstorm some possible options or scenarios that could satisfy both parties. The Mediator could also invite the lawyers to share their legal expertise and advice with the Mediator and the other party, and to assist their clients in evaluating the risks and benefits of various proposals. The Mediator could also acknowledge and appreciate the lawyers’ contribution and cooperation in the mediation process, and emphasize the value of their professional relationship with their clients, and praising them for their valuable work, if appropriate.

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4.    Power Imbalance between the parties

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·      The extent of the Mediator’s involvement: the Mediator should provide the weaker party with resources or information to level the playing field. The Mediator could help the weaker party prepare for mediation by providing them with guidance on how to articulate their interests, needs and goals, and how to evaluate their options and alternatives. This would enhance the weaker party's confidence and competence in the mediation process. However, such resources or information should not favor one party over the other but should rather aim to make the negotiation more balanced and informed.

Additionally, the Mediator could use caucuses or private meetings to explore the parties' motivations, concerns and expectations, and to address any power-related issues that may hinder the communication or cooperation between the parties. This would allow the Mediator to intervene in a subtle and supportive way to balance the power dynamics and to facilitate the dialogue and the problem-solving. The Mediator will then ensure that both parties are participating effectively in the mediation process. However, it is crucial that the Mediator maintains neutrality and impartiality while managing power imbalances.

·       Granting equal opportunities to speak: the Mediator should ensure that both parties are given equal opportunity to speak and contribute. Furthermore, the Mediator could use active listening and paraphrasing techniques to demonstrate that he/she is paying attention and understands the parties' perspectives and emotions, and ensure that the speaking party’s message has been received. This would validate the parties' feelings and views and encourage them to listen to each other as well. Additionally, the Mediator could use open-ended questions and reframing techniques to elicit the parties' interests and needs, and to restate their positions or statements in a more constructive and positive way.

By using these technics, the Mediator will help the parties clarify their issues and focus on the common grounds and the possible solutions. It will also ensure fairness and effectiveness and help build trust in the mediation process. However, the Mediator should always ensure not to be judgmental (i.e. forming or expressing personal opinions or judgments) about what is being said by any of the parties.

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5.    Party’s make premature concession or committing to an unachievable/unrealistic position

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·      Calling for caucus or private meeting: the purpose of which is to discuss the implications of the parties’ concessions or unrealistic positions, and allowing them to vent and express their feelings (or frustrations) openly without the fear of weakening their negotiating position. In addition to allowing the parties to vent, the Mediator can also use the caucus or private meetings to explore the underlying interests, concerns or needs of the parties, and to identify any hidden or non-monetary issues that may be influencing their concessions or unrealistic positions. The Mediator can also use the caucus or private meetings to attempt to find areas of agreement amongst the parties and to help them generate alternative options or scenarios that may be more realistic or acceptable to both sides, as well as to test the parties' willingness and ability to implement them.

·      Conducting a reality testing for the party’s position: this can be done through exploring the practicality and implications of the positions or concessions. In this tactic, the Mediator will use open ended questions to enable the party to understand the unreasonableness of their position. The Mediator may also allow the attorney and client to confer and rethink their position. Such tactics would lead to a more informed decision-making process. In addition to using open-ended questions, the Mediator can also use hypothetical questions by challenging the parties’ assumptions and expectations to help them evaluate the risks and benefits of their offers, positions or concession(s), such as:

-      “How do you think the other party might react if they find your opening offer too extreme, disrespectful or humiliating?”

-       “What might be the consequences if your initial offer is perceived as unreasonable by the other party?”,

-      “What if the other party does not agree with your proposal?”; or

-       “What if the court decide differently?”

The Mediator can also use objective criteria, such as legal standards, market values, expert opinions, or industry norms, to provide a neutral and credible basis for assessing the reasonableness of the party's position or concession, and to encourage them to move towards a more realistic or fair range.  

·       Normalizing the dance: the Mediator should explain to the parties not to (that they can’t)short-circuit the dance, by explaining to them more about the negotiation process and that negotiation involves give and take. Thus, encouraging them to adopt a more reasonable stance. The Mediator could also help the parties save face while making concessions. The Mediator should ensure that the party maintains its dignity and does not feel defeated while making the offer. The Mediator can frame such offer in a way that the decisions being made lead to a beneficial compromise, thus facilitating a more informed decision-making process.

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6.    Internally or externally imposed deadlines

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·      Reminding the parties of relevant deadlines: the Mediator should make the parties aware and remind them of the existence of a deadline or the consequences of not adhering to such deadline.

·      Avoiding the disclosure of hidden or unilateral deadlines: while the Mediator is encouraged to use deadlines as time constraint to urge the parties to settle, the Mediator should be careful not to disclose/reveal a unilateral or hidden deadline that one party confidentially disclosed to the Mediator.

·      Managing power imbalance resulting from unilateral deadlines: when a deadline is relevant to one of the parties and not both, the Mediator should be careful that deadlines do not create power imbalance in the relationship between the parties. Thus, the Mediator’s role in such a scenario is to skilfully manage the power dynamics.

·      Encouraging the parties to set deadlines: if there are no deadlines, it is advisable for the Mediator to encourage the parties to establish such deadlines unilaterally or jointly to enhance the outcomes of the negotiation. The Mediator is advised to do this in a caucus or a private meeting while being careful that such move does not jeopardize the Mediator’s neutrality. Jointly established deadlines are more desirable in this case, as this would create a sense of shared purpose amongst the parties.

·      Breaking a hard position under a strict deadline: if one of the parties maintains a hard position and delays concession under a harsh deadline which may result in serious consequences to costs, some of the strategies that the Mediator should use: (i) notice the pattern and name the tactic in private or in joint session. This would require the Mediator to identify and address the negotiation tactics being used and make the party aware of its behavior and its effects on the negotiation process; (ii) reality testing for the tactic in private. This would involve the Mediator discussing the possible outcomes and realistic expectations with the party showing a hard position or resisting concession; and (iii) help the parties save face while making concessions.

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7.    Intense emotions involved

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·      Acknowledgment of emotions: the Mediator should acknowledge the parties’ emotions by simply recognizing, understanding and respecting their emotions without sympathizing with, judging or minimizing them. This can help the parties feel heard and acknowledged, and reduce defensiveness and hostility. The Mediator should also monitor his/her own emotions and reactions, and avoid being influenced or triggered by the parties' emotions. This can help the Mediator maintain neutrality and professionalism, and prevent escalation of the conflict or losing credibility.

·       Creating rapport with the parties: create a safe environment for the parties to enable them to express their emotions. This would naturally come after the Mediator has built rapport with the parties during the communication and exploration phase, which normally occur during the joint sessions, by using key communication techniques such as body language, reflective listening, active listening, and breaking communication barriers.

Furthermore, the Mediator should establish ground rules and norms for the mediation process, such as confidentiality, respect, and civility, and enforce them consistently and fairly. This can help the parties feel safe and comfortable to share their emotions and perspectives, and prevent disruptive or abusive behaviors.

The Mediator should also use humor, empathy, and positive feedback to create a more relaxed and cooperative atmosphere, and to reinforce the parties' efforts and achievements. This can help the parties feel at ease and motivated to engage in the mediation process, and to build trust and rapport with the Mediator and each other.

·       Separating people from the problem: the Mediator may help the parties direct their emotions towards productive problem solving. The Mediator plays an essential role in depersonalizing a party’s problem, making sure to preserve such party’s dignity. The Mediator should separate people from the problem and try to understand their underlying interests and needs, such as why things are important, what are the key concerns, and why a party wants what it is asking for.

Moreover, the Mediator should assist the parties in reframing their emotions from positions or demands to interests or needs, and to identify and address the underlying sources of their emotions. This can help the parties move from a competitive or adversarial mindset to a collaborative or integrative one.

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8.    Situations where beliefs, values and morals are relevant

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·      Appealing to beliefs: the Mediator could help the parties reach an agreement by appealing to their beliefs, values or morals. The Mediator may also seek to identify and emphasize on the shared beliefs, values or morals of the parties that can serve as a basis for an agreement.

·      Turning the beliefs into interests and needs: the Mediators could help turn such beliefs, values or morals into tangible interests and needs. The Mediator should uncover the underlying interests of the parties that drive the parties’ positions. This normally happens when a party holds strong beliefs which may sometimes cloud its ability to see beyond its own perspective.

·      Changing the parties’ relationship: the Mediator should focus on changing the parties’ relationship and not their beliefs or values. The Mediator’s role would be in this case to encourage discussions that enhance mutual respect and understanding amongst the parties. For instance, the Mediator may focus not only on reaching a mutually acceptable solution but also on transforming the relationship between the parties by; for example, assisting the parties to improve their communication, and understanding and interaction with each other.

·      Mediating across generations or different nationalities or cultures: an effective Mediator should be sensitive to the diverse perspectives that the different participants/parties bring to the table, by avoiding stereotyping participants on this basis. Thus, a Mediator should be culturally competent, and capable of understanding how cultural differences can affect the communication styles, the approaches and perceptions of the parties.

The Mediator should also respect the diversity of the participants. This involves recognizing and valuing the unique insights and viewpoints that each party brings to the mediation.

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9.    Mediator accused of being biased

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·      Inviting the parties to share their perspective and expectations: the Mediator should invite the party who accuses him/her of being biased to share their perspective and expectations of the mediation process and the Mediator's role. The Mediator should listen actively and respectfully to the party's concerns and acknowledge their feelings. The Mediator should also ask the other party to share their views and experiences of the mediation process and the Mediator's role and clarify any misunderstandings about his/her role. The Mediator should aim to create a dialogue between the parties that fosters mutual understanding and trust.

·      Affirming his/her neutrality: after hearing the party’s perspective and clarify any misunderstanding about his/her role, the Mediator should reaffirm his/her neutrality and openly address the specific concerns about his/her bias or fairness by reaffirming his/her commitment to neutrality. The Mediator should explain to the parties that he/she is bound or inclined to follow as they are guided by the set of ethical standards for mediators which may be applicable on him/her and which professional mediators should adhere to. The Mediator can always refer to such ethical principles/standards to explain why they are conducting the mediation in a particular way.

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The above provides a brief overview of some of the many challenges and situations a Mediator may encounter during mediation. The examples and strategies discussed are just a few among many that a Mediator may employ, varying according to the Mediator’s unique style.

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