Competing as a mediator in a moot competition is a conundrum. What’s unique about selecting this particular puzzle is that you never meet your fellow competitors. You enter each session with fresh faces to your left and right and a row of important people in front of you, ready to judge your performance. Instead, unlike when you enter as a negotiator, it’s just you. There is no way to gauge how you are doing in comparison to the other mediators in the rooms next door and there is no way to know for sure if you are acting in the right way or saying the right things. You also only have some pieces of the picture, making it difficult to really know what’s going on from the onset. You may be tempted to speak loudly or ensure that your presence is felt but I assure you, that’s not the way.
Although I have never been in a real commercial mediation, I imagine there are ways in which a competition and real life are fundamentally different. For instance, in real life there is real money, real problems and ordinarily a real urgency to reach a settlement. In such instances people don’t necessarily behave in the way that we would like or need them to in order to find a party-driven solution. They may use positional bargaining or withhold information and they may not be sincerely seeking to re-establish trust and open communication. In the CDRC Mediation and Negotiation Competition it’s totally different. There may be some semblance of mistrust but since competitors are judged on their trust building and communication skills they are prepped to use information strategically and with all their might, share and identify real interests.
There are, however, many ways in which a competition and real life are exactly the same. At CDRC this year I learnt that it is in these areas the role of the mediator is paramount. To put it simply, like in real life, participants of a mediation competition are nervous and unsure. After training for months, it all culminates in that moment, face to face with the other party, ready to negotiate. The tension in the room before the timer starts is palpable and as a mediator, that’s your moment. What’s perplexing about that moment, however, is the fact that while you are in it, you are not competing.
I know it sounds contradictory to enter a competition to be an anti-competitive at the pinnacle moment, but since there are no other “opponents” in the room you are not contending against anyone else. Your job in that moment is not to outshine the negotiators by saying the most impressive things or flamboyantly flaunting the rules and regulations, check-listing through caucus guidelines or confidentiality requirements. It’s important to cover these things, of course, but as the mediator you need to do it in such a way that you address the tension in the room. You alleviate worries and make sure that those who are in direct competition, trust the process and trust you. The moment you open your mouth to speak, you need to settle nerves and establish certainty.
Trusting the mediation process is something that happens automatically in a competition but getting parties to trust you is something different. Sitting at the head of the table it’s a challenge to take a step back and guide the process instead of leading it, but it is the best way to create an environment of trust. I found the training sessions prior to the competition to be incredibly useful in highlighting this fact. I remember writing down that I should listen for (and respond to) emotions in Tom Valenti’s session entitled “Mediator Tools and Behaviors.” Being able to gauge what people in the room are feeling and validating those feelings is a fundamental step towards developing that trust. I’m not saying that every emotion should be brought under the spot light and observed by everyone at the table, but as the mediator it is imperative that you are able to note changes in body language or tone and react appropriately.
It’s impossible to note how people are feeling without being present. Active listening and sincere, honest feedback are imperative in this regard. Summarizing and telling the facts back to the parties in a neutral way is also a great way to show progress and create consensus but proceed with caution – it’s also risky business. Personally, I’m guilty of putting a positive spin on just about everything anyone at the mediation table says. While reframing is a good tool, using it too frequently can quickly backfire if it’s the wrong moment or if the parties are angry and frustrated.
Competing as a mediator is riddle worth riddling. It involves a multitude of different skill sets and an ability to know when you are needed and when you are not. It’s also something that to a large extent is based on self-confidence. I learnt so much at the CDRC competition but the message that resonated most was the importance of being true to yourself. There are so many styles and ways of mediating that it’s easy to fit a mould but once you do, it’s difficult to have the flexibility and reactiveness that’s required of you when mediating. Make a concerted effort to be the best version of yourself when you are sitting in the mediator’s seat. If you don’t feel like the best version of you that day, there are a range of things you can do to get to that point – you can give Sabine Walsh and Aled Davies a call for power stance tips and loud clapping tactics.
One thing I can say for sure, or rather, one piece of advice I could give to future competitors in the mediator category is that you shouldn’t compete. Obviously don’t treat the mediation like a ping pong match, acting only as an observer (remember to listen for and respond to emotions) but don’t treat it like a competition and don’t treat the people in the room as your competitors. How do you do that in practice? It’s puzzling, I know.
*Janene Tuniz is an LL.M Sustainable Development candidate and mediator in the making. She won first prize in Mediation at the CDRC Mediation and Negotiation Competition in 2019 and is the Co-founder and Communications Director of Diciassette which is part of the UN Sustainable Development Solutions Network. She is also the Content Manager and Executive Editor for online publication, The Sustainable Development Watch and is currently completing an internship at the United Nations in Nairobi.