Recently, I’ve been addressing concerns that have arisen about mediation, such as feelings that a mediator was not impartial or didn’t explain the process. There is another concern that has been brought to my attention that I’d like to share and to illustrate it I’ve created an example based on several cases. The actual case that follows is not true in and of itself:

In this hypothetical case, a seller and buyer of a small hotel were in dispute over improvements made to the location. A year before the hotel sale, the buyer added a bathroom. He did the work himself and did not securing inspections. The buyer was now faced with a significant added cost of redoing much of that work to meet code requirements. The buyer contended that that work should have been disclosed before the sale. The seller was not contesting that he did the work himself and that he had not secured the required inspections. While he asserted that details were verbally disclosed, nontheless he was ready to discuss a settlement to protect the sale. The buyer was ready to work out an agreement quickly as that part of the hotel had been closed and off limits to guests.

With both parties anxious to settle the mediation process went smoothly. The parties were moving to an “off-the-record” adjustment to the sale price when one party asked to consult with his accountant and his attorney. He believed he heard the mediator say that the objective was to settle this dispute then and there. He believed he was being pressured by the mediator and the other party to settle at that moment.

Let’s just say that after the fact, their agreement came under legal review.

It is most clear in the “Model Standards of Conduct for Mediators” adopted by the Association for Conflict Resolution, the American Bar Association and the American Arbitration Association that mediation must be conducted on the principle of self-determination. This includes that the parties should be able to make decisions freely. In the standards it states, in part, that “where appropriate, a mediator should make the parties aware of the importance of consulting other professionals to help them make informed choices.”

No one during mediation should feel pressured to make an uninformed choice. The parties have the right to stop the mediator or simply ask for a recess. Personally, I’ve done many mediations where a party has asked for a recess to step outside and make a phone call to their attorney. Having done so, they usually return better prepared to reach an agreement that is lasting and have done so with peace of mind.

When parties who have been in mediation discuss their experience with me, some do say the mediation was not successful because they didn’t feel they could “trust” the mediator. When I probe to find out what they mean by that, it appears that they really couldn’t say what the mediator did or didn’t do that lead to that evaluation. Most say, “it was just a feeling they had.”

Mediators recognize that a lack of trust can affect how the parties work in a session and, consequently, work themselves to gain the participant’s trust. Mediators know that the parties must have trust in them and the mediation process itself. When the parties have trust in the mediator and in the process they are less defensive and more willing to share information and work together to reach a mutually acceptable agreement.

If the mediator’s reputation is known to the parties, there may be some degree of trust before the mediation begins. But in most cases, the parties do not have such information in advance. In these situations, it is the mediator’s behavior that either successfully builds trust or not.

In mediation training programs, most instructors place a great deal of emphasis on helping mediators develop an effective opening statement. That opener goes a long way in establishing that all important trust. In the opening statement the mediator must explain what mediation is and how the process will work; must explain impartiality, neutrality and confidentiality; must explain what a caucus is if the mediator uses them; must review any behavior guidelines, such as language use and professional behavior; must congratulate the parties for trying mediation; and must secure their commitment to participate.

Mediators will tell you their opening statement “sets the stage.” If they do this properly, participants feel more comfortable with both the process and the mediator.

From that point it’s the mediator’s behavior which continues to reinforce that trusting atmosphere. The mediator must treat all parties equally and with respect and dignity, must demonstrate they are listening, and demonstrate confidence that the parties can find a mutually agreeable solution.

Some people who have told me they didn’t trust their mediator also asked me what they should have done to address how they felt. I reminded them that mediation must be voluntary and uncoerced and that parties in mediation can exercise self-determination at any stage. That means, if you don’t have confidence or trust in your mediator, you have every right to stop the mediation. A flawed process is not in anyone’s best interest.