Inspired whilst listening to Billy Joel.
“A mediator must build trust with the parties to stand any chance of the mediation being a success.”
That is a statement but is it a fact? It certainly doesn’t do the chances of reaching a settlement any harm, but does that level of trust have to exist?
Whether it does or doesn’t will be a matter of opinion and for me it is fundamental – whether it needs to be there or not, I want it to be.
There is little you can do in collaboration in life without trust. Marriage is based on trust. Your children trust you. Your friends and colleagues trust you. Without trust you may find your relationships dwindle in front of your eyes.
But what of mediator trust? Two cases come immediately to mind. The first was a small claim where I was appointed to mediate between a builder and a homeowner. Let’s say it was to do with the construction of a conservatory. Both parties mistrusted each other and they were told to mediate by the court. They didn’t have an understanding of mediation and they mistrusted it and, at least at first, they mistrusted me as the mediator.
This was evident in the pre-mediation communications. The party making the claim (Beryl*) had a very strong local solicitor who insisted all communications were made through him. I didn’t get to speak to Beryl until the mediation itself. When I finally spoke to Beryl, I had to spend nearly an hour persuading her that mediation was the best option at the moment and that she could trust me as mediator to remain impartial. It was a struggle I can tell you. To her, at first, I was just another part of the legal system that had mistreated her up to then. Trust was finally achieved when Beryl broke down and cried. She trusted me. I had been genuinely empathetic to her situation and she trusted me and the physical and mental barriers melted away.
The other party (Billy) was a different story all together. Billy was evasive. Right up to the night before the mediation nobody knew if he would turn up. He wasn’t represented and was ignoring all calls. I had personally phoned him six or seven times and he was not picking up. Finally, I thought I would try a new tactic. I waited until 9pm the night before the mediation and used my personal phone to call him. He answered. The last person he was expecting was the mediator.
Before he hung up I put on a stronger northern accent than usual. He later said that he was expecting someone to sounds like Prince Charles and my accent made him think twice about hanging up.
We then spent an hour achieving trust. He hadn’t answered because he was scared. He didn’t understand what mediation was – so I explained it to him. He didn’t know what my role was, he thought I was going to judge him – so I explained my role to him. He didn’t have a lawyer and was scared that the other party would destroy him – so I explained how I would manage any perceived imbalance in power.
Most interestingly, he didn’t know how to dress. He was a builder and didn’t own a suit. He said he expected me and Beryl’s lawyer to be decked up to the nines. I explained to him I was quite casual really and if it helped him relax I wouldn’t wear a suit. We settled on me just wearing trousers, a shirt and jumper (plus socks and shoes and other undergarments of course!). That was the clincher for him. He had a job after the mediation and needed to come ready for work. That meant wearing his builders clothes. I said that was fine and he turned up the next morning in boots, shorts and a hoodie and it made no difference to me or to Beryl or anyone. The fact he was there was all about trust.
You can’t really fake trust. It is either in you or it isn’t and people either allow you their trust or they don’t. But part of being a mediator is to be tenacious and to work hard to get trust. Some may disagree, that’s fine, but I suppose the ones who don’t think trust is important are the ones I wouldn’t trust anyway!
*Beryl and Billy were not their real names. To disclose their real names would be many things, including a breach of trust… Gladly Beryl and Billy settled their differences and whilst I am pretty sure they will never be friends, the action was dropped and mediation was successful once again. And yes, I am a huge Billy Joel fan...