Understanding mediation from the client's perspective

1. Understanding mediation from
the client’s perspective
Dr Pat Marshall
MELCEC Mediation and Educational
Consultancy
Presentation to KonGres September
2015

2. The gulf between perspectives
The mediator
• Is committed to task /
process
• Signals conciliatory
intentions
• Is optimistic about
outcomes
• Encourages exchange of
viewpoints
• Values confidentiality and
impartiality
The client
• Is committed to the conflict
• Signals enmity
• Is doubtful about efficacy
• Wants distance from ‘the
other’
• Wants public declaration
about ‘rightness’
Pat Marshall KonGres 2015 'The client's
perspective'

3. How do we know?
We feel the same way when we are in
conflict ourselves! We get it.
We just need to be mindful when
mediating other people’s conflicts.
Pat Marshall KonGres 2015 'The client's
perspective'

4. Party 2 likely to feel more aggrieved
than Party 1
• Didn’t know there was a problem (workplace)
• Had wanted to sort it out but P1 had gone
straight to authorities (neighbourhood)
• Still angry / grief stricken over the separation
– being ‘invited to attend’ is the last straw
(family disputes)
• Perceives that the cards are stacked against
them while P1 gets some kudos for having got
the ball rolling.
Pat Marshall KonGres 2015 'The client's
perspective'

5. What do unwilling participants see?
• The other is the cause of the problem, so Why
am I here?’
• No way out of the emotional reactions. No
one understands. I’ve had no say.
• an ‘authority’ figure – certificate dispenser, or
puppet of management / Council / the other
party. It’s all right for you sitting there looking
superior, and banging on about being
impartial.
Pat Marshall KonGres 2015 'The client's
perspective'

6. The participant’s view (cont)
• Stacks of information which seems ‘useless’ I’m
too busy to cope with all this. I’m overwhelmed.
• A challenge to their preferred way of handling
conflict – collaboration is a threat to intuitive
responses of avoiding/ accommodating / fighting.
You expect me to work together with my
enemy?
• The impossibility of compressing history and
decisions about the future into a limited time
frame. This is unrealistic.
Pat Marshall KonGres 2015 'The client's
perspective'

7. Compounded by:
• Differing behaviours prompted by different
conflict styles: withdrawal, attack (body
language and voice), look of helplessness.
• Differing personality ‘types’, eg preference for
introversion vs extraversion. The ‘literalist’ vs
‘the big picture’ person. The quick decision
maker vs the muller. The ‘facts and figures’
guy vs the ‘people person’.
• The mediator’s own preferences.
Pat Marshall KonGres 2015 'The client's
perspective'

8. How can we address these differing
needs – what is held in common?
I propose that our clients need:
control more than self determination
compassion more than impartiality
comfort and security more than voluntariness
clarity about confidentiality and about our
roles and theirs
credibility of the mediator achieved through
competence – emotional, social, political
Pat Marshall KonGres 2015 'The client's
perspective'

9. How do we respond?
• Comfort /security (needs, motivation theory)
– Layout of waiting areas
– The wording of the invitation to P2
– Front line contact
• What can I do to enable your participation?
• Clarity (self efficacy theory)
– What is expected and NOT expected (rolling over)
• What do you expect of me? What information
do you need?
Pat Marshall KonGres 2015 'The client's
perspective'

10. How do we respond (cont)?
• Compassion (procedural justice, needs theory)
– Understanding shown about the pain of the
conflict and the difficulty of the situation
– Using clients’ own words to describe their
concerns
• What is the most difficult aspect of what’s
happening? What do you think X would say?
Pat Marshall KonGres 2015 'The client's
perspective'

11. How do we respond (cont)?
• Control regained through choice (needs,
motivation, personality type, power theories)
– Thorough exploration of options
– Giving necessary time to reflect or consult
• What do you want to get from mediation that
you could not get from doing nothing,
lumping it, fighting? What do you have to do
to enable this to happen?
Pat Marshall KonGres 2015 'The client's
perspective'

12. How do we respond (cont)?
• Mediator credibility is achieved through
competence. In limited time, the mediator:
– Has elicited commitment to the process
– Been calm and patient, accepting of viewpoints;
respectful but still challenging assumptions;
knowledgeable about technical matters, but not giving
advice; strategic about moving forward or staying on a
topic; unbiased.
– Has enabled each party to negotiate to the best of
their ability.
• Have you had the chance to say what you needed
to? What could have been done differently?
Pat Marshall KonGres 2015 'The client's
perspective'

13. For discussion
If you were a party in mediation, what would
you want the mediator to do to make you feel
the whole thing was worthwhile?
What would cause you to object to the
mediator’s style or the process?
Pat Marshall KonGres 2015 'The client's
perspective'