Traps for Ineffective Mediation
Traps for Ineffective Mediation
1. Failing to establish credibility 2. Portraying a perception of partiality toward a given party 3. Portraying too much agreement with any one party’s position
4. Body language or emotional responses which would be perceived as a bias or prejudice or a value judgement
5. Focusing on the issue of fault
6. Taking control of fashioning a solution vs. allowing parties to work out solution
7. Making value judgment about merits or worth of case
8. Breaching confidentiality of caucus disclosures
9. Over-intervention in the negotiation process
10. Failing to use active listening skills
11. Assuming asserted goals of parties are real goals (failing to recognize hidden agendas)
12. Use of term “compromise” and “split the difference”
13. Use of term “settlement” in lieu of favored term “resolution”
14. Failing to assure at outset that parties present have “authority to settle”
15. Being insensitive to values and beliefs of parties
16. Impatience 17. Telling parties how to settle their claims
18. Making value judgment as to what is fair and equitable (exception: family law cases in some jurisdictions)
19. Overuse of “I” (e.g., “I think...”)
20. Answering question by party as to “whether you think that is a fair offer”
21. Communicating final offers in caucus; rather, return to joint session first
22. After caucusing with one party, caucus with the other party (however briefly) before returning to joint session, even if only to ask party if there is anything he/she desires to share with mediator before resuming joint session
23. Accidentally assuming as a fact that which is actually in dispute
24. Commencing caucus sessions without having reason for caucusing 25. Analyzing the contents of a written document submitted by one of the parties
26. Focusing on less important sub-issues as they rise
27. Perception by the parties that no progress is being made
28. Offering a personal recommendation as to a possible settlement option
29. Failing to reduce agreement to a written memorandum
