Out-Maneuvering the Manipulative Party

I've discussed this briefly before, but power struggles are one of the most interesting and challenging aspects of mediation for a mediator, and especially this one.

When one party is more knowledgeable of the law or the process at hand, they may turn often to the mediator for reinforcement that they are "correct." Over time, this can result in the other, less well-informed party feeling trampled, or often defeated. How to navigate this scenario with care? Even if the knowledgeable party is technically correct, I try to remind both parties that one of the reasons they are in mediation is that the alternative dispute resolution process allows for a more creative (although always legal) solution.

This maneuver usually helps me to sidestep declaring them correct, and reminds them that their interests will be far better served if they engage with the other party, rather than seek to display the twenty minutes of Internet research they have may have done in preparation for the meeting. A gold star from the mediator doesn't go very far when the parties can't have a meaningful exchange between themselves. Alienating the other party is not prudent, and yet this is exactly where this path will lead. Most parties in mediation are there to work with the person on the other side of the table - when the conversation turns to "right" and "wrong," things are almost certainly going downhill. I prefer to couch issues in terms of "fairness" and moving forward towards an equitable resolution together.

The law absolutely has a place in mediation; a sense of the law is vital to enable the mediator to provide context for any agreement that may emerge from the process, as well as to ensure that the parties are fully informed of their rights. In my experience, this legal background is perhaps best received when it comes from the mediator, and preferably is requested jointly by the parties.