The Mediator as Transmitter and Translator of Information

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As mentioned in my earlier post The Mediator as a Facilitator, one of the challenges in mediation is how to deal with the breakdown in communication and trust between the parties. As is often the case, they may not have spoken since the dispute arose.

The breakdown of communication is likely good evidence that the parties are not understanding each other’s positions. Mediation is an exercise in dealing with interests, of course, not positions. Regardless, the Mediator must quickly assess if the parties are not just talking at each other, but also truly understanding what the other is saying. Reasons for a lack of understanding include a lack of awareness of certain facts or differing perceptions of the meaning of those facts.

The mediator, therefore. can provide a valuable service to the parties by “drilling down” on the facts and understandings each party may have and not only transmitting information that may not be known, or whose relevance has not been given sufficient importance, but also translating that information in a way that may give each party a new perspective on the dispute. Both functions are important and may pay big dividends in achieving a successful outcome.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Herbert Silber, Kornfeld Mackoff Silber LLP | Attorney Advertising

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