Earlier this month, I had the privilege of participating in a weeklong mediation training at Harvard Law Schools’ Program on Negotiation. It is known as one of the best such programs in the country, and I learned why. Five accomplished mediator-instructors and 48 participants, with legal and non-legal backgrounds and from 13 countries, for 9 hours per day. I learned many lessons through the presentations, exercises, and reading that are well worth sharing. There are five that I believe are especially useful in the context of employment disputes. In a previous post, discussed the use of joint mediation sessions in employment cases, and in a more recent post, I discussing positional and interest bargaining.
Lesson #3: The “Monkey Should be on the Parties’ Back,” Not the Mediator’s
A mediator’s success or failure should not depend on whether the mediator “brokers a deal” and the parties settle. Many mediators, and the parties to mediation, believe that a mediator’s duty is to the deal. She’s supposed to do everything in her power to get the parties to walk out with a settlement agreement, or at least the material terms of settlement, in hand. To be sure, getting to a settlement or at least closer to one is a key objective most parties to an employment dispute expect a mediator to do. But remember, mediation isvoluntary. It is the parties who will decide whether to resolve their dispute or not. She can use a variety of methods to help them toward resolution: probing, questioning, suggesting. But the responsibility for settlement — the “monkey,” as the instructors called it — is theirs, and theirs only. And despite pressure from the lawyers and their clients, the mediator may have to push the monkey gently back on the shoulders of those to whom it belongs.