How to manage expectation of clients in Mediation?

This title reflects a familiar marketing and ethical question for all service providers – what do clients of plumbers/doctors/psychologists/builders/lawyers etc want?

Predictably, the answers given by anecdote, “theory” and more systematic research are complicated and conflicting. There is a simple answer to every complex question, and it is wrong.

There are three elements in the question – what do the (1) clients of (2) mediators (3) want?

First, who are “clients”? There are four possible types of clients:

• Immediately visible disputants or “parties”.
• The “tribe” behind the visible disputants – eg relatives, shareholders, cheer squads, the hawks, doves and moderates.
• The person paying the mediator – the insurer, taxpayer, corporation, court administrator.
• The “expert” representative (often a lawyer) acting on behalf of the “party”.

These four categories of “clients” have different though usually some overlapping goals or “wants”.

 

Any apparent unity in each of these four teams obviously masks the reality that different members within each team have different “goals” or “wants”!

 

Goals of the fourfold “clients” multiply into a maze of spoken and unspoken conflicting hopes and expectations – no wonder mediators, negotiators and politicians age prematurely.

An important addition to the jangling and shifting fourfold “client” goals, are the sometimes conflicting goals of the mediator – to be paid, to be respected, to be hired again, to follow a tried process, to avoid deception etc – a possible fifth wheel on the already four-wheeled bus.

The second element of the question is the word “mediators”? Like physicians, there are many types, hybrids and chameleons under the umbrella of “mediators”. Much has been written about mediator typologies plus personalities.

Clients have a variety of different expectations/goals/wants from different “types” of routine or customised mediations – an opinion, or not; shuttle or not; lock-the-door or not; explore emotions, or not; long preparation, or not; clients talk-a-lot, or not; go till midnight, or not; structure or not; with all the abacus of variables in between.

The third key word in the question is “want”. “What do clients of mediators want?” All service providers face this tension – what clients subjectively “want” at the moment, may not be what they “need”, on some other objective criteria, in either the short or long term.

Moreover, a major part of a mediator’s task is to assist the fourfold “parties” to change their wants and goals to a new version of goals and needs. Therefore Initial wants (procedural, emotional or substantive) are important starting points, though not finishing points which they will “need” to reach, for a settlement of some kind to occur.

For example:

In typical mediator and problem-solving fashion, having made the initial “question” far more complicated, here are a few possible answers from story, systematisation and statistics.

Story

My own experience as a mediator is that what the fourfold “clients” often want from me is:

Lawyers:

• “John”, just weave your magic”.
• To “get rid of” a troublesome client who is not listening to advice and/or paying bills.
• To manage a “troublesome” lawyer or tribal member on the other side eg who is giving (in their opinion) crazy advice.
• To impose a deadline upon disorganised “opponents” by which time the mediator will require and assist with written summaries of data, evidence, rules, risks and ranges.
• To establish via preparation meetings a calm environment where posturing pontificator or silent stonewaller will suffer some embarrassment/before a respected authority figure, and hopefully modify his/her behaviour.
• To satisfy a statutory requirement for mandatory mediation just in case the dispute needs to proceed to a full tribunal or judicial hearing.
• To use a process with which I am familiar and comfortable and over which I have some control.

Payers want to:

• Settle this dispute anyway possible, quickly and quietly because the disputants are causing serious damage to our organisation.
• Make sure the settlement sticks.
• Set up a quick response reaction system if the dispute breaks out again.
• Be told confidentially which party is to blame, so that we can sack him/her if this happens again(!!!).

Visible disputants want:

• To settle this somehow – the conflict is escalating and having many side-effects on health, reputation, diversion from work, litigation trauma etc.
• My version of “justice”.
• A comfortable and structured meeting where some politeness and clarity may emerge from the fog of war, and legal babble.
• To be listened to.
• A meeting where some control is exercised over an angry, violent, stupid, mentally-ill, alcoholic, drug addicted or dominating person; or vice versa (a meeting where I can try to dominate a “weaker” person).

Tribal groups in the background want:

• Our preferred solutions.
• To express outrage, and righteous indignation when our representatives or relatives are weak, compromising wimps. (“principle without the pain”).

Systematised preparation lists of goals

Apart from the anecdotes above, the possible goals/wants of visible partners and lawyers can be systematised into ubiquitous lists to assist these people prepare for negotiation or mediation.

For example:

Client Information Sheet – How Will You Measure “Success”? And What Are Your Goals At The Proposed Mediation/Negotiation?

Very Important = 5

Important = 4

Marginal Importance = 3

Not Relevant = 2

Unsure = 1

GOALS AT THE MEDIATION/NEGOTIATION	RANK
To clarify what this dispute is about
To be listened to
To regain some control over a confused situation
To meet in a comfortable situation
To make speeches and presentations about the strength and reasonableness of my position
To have my difficulties acknowledged by the other side
To give an apology of some kind
To receive an apology of some kind
To communicate directly, rather than through lawyers or other people
To understand why these claims are being made
To understand the other disputants better
To clarify alleged facts and evidence
To have the mediator express opinions on the reasonableness of our respective claims
To reach at least partial agreement
To reach agreement at the low end of possible range of outcomes
To reach agreement at the mid-range of possible range of outcomes
To reach agreement at the high end (in my favour) of the possible range of outcomes
To avoid the delay, cost and uncertainty of further conflict
To create at least some doubt in the minds of the other disputants about the reasonableness of their claims
To “beat” the other disputant
To have an opportunity to express my feelings
To have a mediator who controls procedure, air-time and politeness fairly
To have any agreements expressed quickly in a legally binding document
To reach an agreement that all parties can live with
To reach an agreement that is likely to be observed
To lay foundations of politeness and clear communication for a later agreement
Other ??

Date: ________________________

Signed: ______________________

Joint Client and Representative Goals

As a client identifies risks if the conflict continues, this will also identify client goals.

From your experience as a representative or mediator, what joint client and representative goals or measures of success do you see at the mediations (and negotiations) which you attend?

Seen Often = 3

Seen Occasionally = 2

Seen Rarely or Never = 1

JOINT CLIENT AND REPRESENTATIVE GOALS?	RANK
To be compliant with a legal requirement to attend
To make a presentation about the merits of a case or solution
To listen; to understand the motivations and interests of the “opposition”
To be listened to
To regain client control from professionals or inertia
To give an appearance to outsiders (eg. bosses, courts, relatives) of behaving reasonably
To gain insights into alleged facts, evidence and interpretation of rules from the “opposition”
To sow seeds of doubt with the opposition
To create a deadline for a meeting for a disorganised “opposition”
To meet in a comfortable environment
To have unruly opposition under some constraint by the mediator
To create doubt by having the mediator express an opinion about the  reasonableness of opposition’s claims
To clarify whether our claims are reasonable by having the mediator express an opinion
To wear down the opposition with another time-consuming and expensive meeting
To evaluate the skill and credibility of opposition witnesses
To reach a settlement within the predicted range of outcomes
Other?

Surveys and statistics

Apart from stories and systems, there are of course more structured research and statistics which give another window (not necessarily more “accurate”) into the question of “what do clients of mediators want?”

For example:

Bond University survey of mediators

In 1999, Bond University Dispute Resolution Centre assembled fifty of the most frequently employed mediators in Australia (mainly lawyers) in “commercial” disputes. Over two days this group completed a number of exercises including the following survey.

What do mediators themselves want when they have a mediator?

From the list set out below attempt to rank the desirable skills and traits you look for in a mediator. (You can only give the top ranking to five of these traits and skills.)

	Essential	Preferable	Not Necessary	Ranked as one of 5 top priorities
Warmth and friendliness
Substantive expertise in the area of dispute – eg. law, accounting, engineering
Follows a predictable mediation process
Highly organised
Stickler on process rules, good behaviour, speaking in turn
Good sense of humour
Excellent diversion strategies
Ready to express strong opinions; give strong advice
Strong opinions on process; but reluctant to give opinions on judicial outcomes
Protects the reputations of lawyers
Persistence and patience
Excellent communication skills – listening
Reframing, summarising skills
Good drafter of documents

Now compare your ranking with the self-perceptions of fifty leading commercial mediators from Australia.

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