Mediation: A Place for Form and Substance

The form should be for them, and the substance, for you.  What do I mean?

From where I, as a mediator sit, everyone should both be focused on the substance of deliberations and be cognizant of the form in which the deliberations take place.  For parties, it is important to focus on the form when interacting with the other side (and mediator) and the substance in the quiet of your own caucus room.

Still want to know what I mean?  Well, we all know by now that the achieving the goal of resolution requires a multitude of things.  The way in which you pursue resolution, the manner in which you speak and convey ideas or information, THE WAY YOU INTERACT with people is crucial.  A proper tone can be the difference between getting the other side to work with you or push against you.  That is what I mean by "form".  How you interact makes it possible, in most cases, to make meaningful progress in a rational, efficient manner whether the issues are mundane, technical, simple, complex, or riddled with emotion.  I believe form is the canvas on which everything else is delivered and thus may be judged.  A bad attitude, adversarial response, a snide comment, or an insensitive dig can stop all progress.

While form is important in terms of what you say and do and how you do it, do not make the mistake of getting hung up on the other side's "poor form".  When making substantive decisions, you need to, of course, focus on the substance.  In the back-and-forth of mediations, people all to often fall into the trap of reactively negotiating.  They may get lucky and get through even though they behave in the same way the other side is behaving.  But more often than not, the side that stays focused on the substance and always works to use "proper form" will get a better result, or a result no less advantageous, but achieved more cost effectively.

So, to summarize.  Both form and substance are important.  YOUR form and the substance that is. Try ignoring the other side's gaffs, missteps, and destructive behavior.  The other side's form should not be an impediment. In mediation, if you always act from a position of confidence and politeness with an eye on the substance, you will be glad you did.

- Richard B. Lord

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