At the start of mediation the mediator will almost always take a quick run through the ground rules already covered in this series – that the parties are responsible for the outcome, that the mediator is neutral and the whole process is covered by confidentiality. That done, the mediator will then often ask the parties to make opening statements. This should not come as a surprise – if I think that it could help in any given case then I will tell the parties in advance that this is my intention.
Even though the statement should last less than five minutes, it is an extremely important part of the mediation process. It provides in particular a chance for both parties (usually the employee) to vent some of the emotion associated with the treatment he perceives as having led to the dispute. Where the mediating parties are both employees this can be very liberating and allows a clearing of the air in a way which a structured grievance meeting could never achieve. This may be the first time that the employee has had the chance to say directly to his employer exactly how he feels about things, without fear of instant contradiction or retaliation.
I always encourage each party to speak directly to the other, and not to address their remarks to me. Eye contact with the other side can be very powerful, so I would ask them to be sufficiently familiar with their statements that they do not need to read them line-by-line. Last, it is a golden rule that the other’s opening statement must not be interrupted by word or gesture, almost however aggressive or offensive the listener perceives it to be.
So what should the employer say? I have found to be very effective an early acknowledgement by the employer that there is an imbalance of emotion in play – it can rarely hurt so much to dismiss as to be dismissed, even if the employer feels the termination to be justified. The employee’s sense of grievance can be deflated to some extent by his seeing that fact recognised up front. While the employer can state its belief that it has less to lose than the employee if no settlement is reached, it will be much more helpful to focus on its own acceptance that it is in both parties’ interests to talk constructively about a resolution. In addition, reference to some point in the past when the relationship between the parties was much better can be very positive – it reminds the employee of happier times and that helps him see the employer as a former colleague with shared memories, and not solely as an enemy in litigation.
Who should make the statement, the lawyers or the parties themselves? I always encourage the parties to speak direct. It can be inimical to any impression of openness and willingness to talk if they hide behind their legal representatives.
The tone of the statements can inform the next steps in the mediation. If one or both come across as hostile and uncompromising then I will generally recommend a move straight into private sessions. However, sometimes the statement reveals that the parties are closer than they thought. In those cases I might suggest that they continue talking in joint session to see where it goes.
Next week we move into private session with the “Exploration Phase”.
Caroline Sheridan, CEDR
