Civil Engineering Reference
In-Depth Information
More likely, the mediator will check what information is confidential
and what is not. Some, probably more experienced, mediators will con-
firm specific information and leave the rest open. It is therefore up to
the parties to be specific as to what is confidential and what is not. And
whilst the temptation is to play safe and keep most information con-
fidential, the question to ask is: 'Why should it be confidential?' The
mediator is in the best position to decide what information to pass and
what to hold: what will help the progress towards settlement and what
will hinder progress; when the time is right to say something and when
it is not.
One of the skills of a good mediator is the strategic use of information.
S/he needs maximum flexibility to do this effectively. If the mediator has
built rapport and you trust her or him with sensitive information, don't
constrain the mediator with unnecessary confidentiality. The mediator
is there to help parties get to a deal. The information s/he carries will
be used with that purpose in mind. Of course, if the mediator has not
built rapport then the trust will not be there to give parties confidence
to pass on sensitive information. The essential quality of an effective
mediator, more than anything else, is the ability to build a trusting re-
lationship quickly. So if the trust is not there, don't give the sensitive
information.
It is easy to be impatient in a mediation and want to get on with the
negotiation. Mediators are sometimes 'seduced' into skipping the ex-
ploration because parties say, 'We know all about their case, so stop the
touchy-feely stuff and get on with the figures.' It takes a confident, if
not brave, mediator to resist that and stick with exploration. But many
experienced mediators will tell stories of when they complied with the
suggestion to go straight to the figures and then the mediation dead-
locked. They had to bring parties right back to exploring needs and
drivers to get the mediation on track again. The fact is that parties have
probably already tried negotiating a settlement and reached deadlock
(otherwise they would not need a mediator). Mediation offers a different
way that has been tried and tested over many years and thousands of
mediations. So trust the process and be patient! Exploration is important
and creates the foundation for the best settlement.
5.7
Idle time
Having mentioned that the mediator shuttles between parties' rooms
and holds private meetings, it is necessary to highlight the one problem
with mediations. The idle time - time when the mediator is with the
76
