At the end of the joint session (see Part 5 on 7 February) the mediator will move the parties on to the Exploration Phase, talking separately to each party. I will normally visit first the one who showed the greater emotion in the opening session (generally the employee), because it is there that I can immediately be reassuring to best effect.
It is tempting to try to herd the protagonists straight into the bargaining stage, but this will almost always be a mistake. Whether they consciously know it or not, the parties will generally need some reinforcement of the underlying framework of the mediation (neutrality, confidentiality, etc.) before they will genuinely begin to open up to me, their advisers and indeed sometimes to themselves also as to their needs from any resolution. It would be naïve to expect a party to bare its soul in the first private meeting.
I therefore begin the first private session with an open question – how did they feel about the other party’s opening? – and will be patient and silent while they vocalise their thoughts. Even where someone has come armed with lawyers, I tend to park myself close to the individual in order to help build the necessary rapport. The lawyers can of course be involved but I would generally discourage a party from relying on them to the point where they dominate the meeting.
This first private session will be very much more about feelings and very rarely about either numbers or the legal merits of the dispute either way. Pushing into bargaining too quickly compels a retreat into previous legal positions and so will be counter-productive. However, building trust takes time, and time is an odd thing in a mediation because it runs at different speeds in the different rooms. Time while I am with one party runs very quickly for him, but the same period will feel much longer in the other’s room. That party may begin to feel abandoned or that I am somehow favouring the other (which is prospectively the death of the mediation altogether). Therefore in order to keep both parties engaged, a good mediator will continually inform each party roughly how long he/she will be with the other, and tell them straight away if there is a need to extend this. Keeping an eye on the clock and appearing at the same time to be focussed entirely on the party is one of a mediator’s key skills.
Even where no figures have been discussed or concessions made at the first private session, the mediator will reinforce the confidential nature of the proceedings in that room by asking specifically what he/she can take from that private session to the other side. It may be no more than an emotional reaction to the opening, positive or negative, but it will still help the early hesitant steps towards a meeting of the minds. After two or three such meetings for each side, none probably lasting more than about fifteen or twenty minutes as a rule, we will have prepared the ground to move on to the Bargaining Phase. I will talk about this next week.