Effective Mediating/Martin Rosenfeld, JD

Posted on March 1, 2020

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Dan Simon, a mediator who both practices and teaches, wrote for mediate.com in February 2020 on the concept of parenting by “looking away”. Sometimes a parent has to simply count on the ability of their children to make wise and constructive decisions on their own. Mr. Simon has a wonderful, if not laconic, sentence about mediation. “When parties are the center of the process, when we trust the parties’ decision-making,resolution, and when we are optimistic about their capabilities, they take more responsibility.” This statement is about engendering independence through a projection of trust. It is a way of a mediator saying “I know you two can do this”.

What impresses me about this statement is the wide-reach of its message. I might summarize this message as follows:

1. Make the parties feel they are at the epicenter of the potential resolution. The process is ultimately theirs; not that of a judge, a mediator, or anybody else. They are IT.

2. Show the parties that you have trust in their abilities to get to the resolution of the dispute. Feel free to tell them that you feel this way. And tell them this often.

3. Be optimistic. You have seen disputes end in a resolution many times. Their dispute is no different and their combined abilities are no less potent than that shown by others.

4. Step back far enough so that the parties know they have to shoulder the burden or responsibility of finding a solution. Knowing when to simply listen rather than talk is an important component of this. Much like the wise parent, know when to “look away” and let the parties seize control.

The above is a tall order, but it perhaps sums up eloquently what effective mediating is all about.