By Nadav Nishri. Translated from the Hebrew article on his main website.
Mediation before a dispute reaches court differs fundamentally from conciliation—my term here for mediation after pleadings have been filed. Although the working methods and professional terminology may look similar, their practical meaning changes. The main difference lies in the kind of conversation taking place.
Once pleadings have been filed, lawyers representing the parties play an active and significant role. To remain neutral, avoid advising the parties and respond to legal advice that may intensify their differences, the mediator may need to find creative ways to conduct a legal discussion with the lawyers. This discussion draws the parties toward what might happen if the dispute is decided in court. It can make collaborative negotiation and creative ways of expanding the available options harder to pursue.
In my experience, much mediation training in Israel focuses on disputes referred by the courts, rather than cases brought privately. Basic mediation courses and small-claims practicums commonly deal with court referrals. New mediators can therefore find private mediation particularly challenging: the conversation may be more emotional and more blunt than the discussions they encountered in court-referred cases.
Working before pleadings have been filed requires the mediator to cope with the pressure and anger that often emerge in the room. The following tools may already be familiar to mediators trained on court cases, but they take on a different meaning in private mediation.
Exploring alternatives
In private mediation, discussion of alternatives often arises around a recurring statement: “I will go to court.” In many cases, I regard this as a negotiating threat that need not immediately become the focus of the joint conversation. As long as the parties remain in the room, they are still participating in the process. The mediator should avoid trying to predict whether a statement is merely a negotiating move or reflects a genuine loss of confidence and a wish to end mediation.
I would examine the meaning of the threat, and the alternatives themselves, in a private conversation. Mediation involving intense and conflicting emotions can have ups and downs, including frustration. The mediator need not be alarmed when the parties become tired; encouragement and support are part of the work.
When a participant feels that they have exhausted their time in mediation and threatens to file a claim, however, it is appropriate to explore alternatives. Ask, without criticism, what going to court would actually mean for them. Do not approach the conversation as though the participant knows nothing about the consequences. Well-chosen questions can help them examine the advantages, disadvantages and likely consequences of litigation more deliberately, alongside the possibilities that mediation may still offer despite the immediate difficulty.
Reflection
Reflection is widely recognized as a central mediation tool. Many mediators reflect back what each participant has said. I often suggest asking the participants themselves to reflect one another’s words instead.
When a mediator reflects one person’s position, there is a risk of doing it “too well.” The other person may feel that the mediator is representing that position or even agreeing with it. One or both participants may then experience the process as biased and wish to stop.
By asking one participant to reflect what the other has said, the mediator gives both an opportunity to understand the message more accurately. The speaker can also hear directly how their words were received.
Reframing
Reframing is one of the most important tools available to a private mediator. It differs from simply repeating a participant’s words. It allows the mediator to express their meaning in a constructive and positive way, helping both participants see possibilities within the situation.
Used well, reframing conveys a complex message in a way the other person can understand. It also helps the speaker understand more clearly how their words are perceived by someone else.
Asking questions
A familiar mediation principle is to ask open questions rather than closed ones. A closed question can narrow the conversation into fixed choices and positions; an open question creates room for discussion. Yet knowing how to formulate an open question is only a beginning. There are many kinds of questions that a mediator needs to learn to use.
These are among the types I particularly like:
- Questions that imagine a different reality. Suppose there were a pink button that could change reality and create the ideal situation for you. Would you press it? What would that reality look like? Would the other person be there with you?
- Questions that invite elaboration. Simple questions can help participants move beyond short, unclear statements into a more substantial conversation with clear practical meaning.
- Questions from a wider perspective. Asking participants to describe their situation as an outsider might see it, or from a bird’s-eye view, can open a new, fresh and perhaps more objective perspective on the disagreement.
- Questions asked by the participants themselves. Sometimes one person feels that the other is not providing clear answers, and mistrust grows. A clearly formulated question from the person seeking an answer can help. Give that question a deliberate place and importance in the process, and invite the other participant to answer it. The participants may then treat it with greater respect and make it a focus of the discussion, helping the questioner receive as clear an answer as possible.