If You See Something, Say Something – A Thoughtful Take on Mediation

ou’ve probably seen those signs in subways, buses, airports and other public places that asks the public to report anything suspicious. It’s a good way to help prevent crime, and even terrorist attacks.

“If You See Something, Say Something” is a national campaign. It originated in New York City after 9/11. The term was created by the New York Metropolitan Transportation Authority which runs the subways, buses and other public transportation in that city. It’s used now by many federal and state agencies.

As mediators, we spend a lot of time sitting in silence, listening to our clients’ stories. Through listening, we find out a lot of important things about them. It is through this open-ended listening (and observing) that we gather the material that helps us provide the tools with which we can help our clients resolve the problems they entered mediation to address.

The material gained in listening to clients is multifaceted. It goes far beyond anything that can be provided in a written questionnaire that some mediators ask clients to fill out prior to the first mediation session.  In fact, relying on questionnaire answers can short-circuit the mediation process, because the mediator may unwittingly not look “behind” the answers. By asking the clients to provide open-ended material during sessions rather than having a prewritten set of responses, a more wide-ranging data bank of information will be provided to the mediator which helps provide tools for the mediator to work with.

By listening to clients and in observing and assessing their body language, the mediator can access a more complete and intimate understanding of a client’s thoughts and concerns, even if they are not expressed in words. In fact, some of the most germane information gathered may come from noticing a client’s fleeting facial expressions, those so-called “micro expressions.”

How do we help our clients? What exactly do we do as mediators?

What I’ve come to appreciate after years of practice is this: Our function is, at its essence, to provide feedback to clients during sessions that the clients may find helpful in moving them forward, relieving their stress, and finding solutions. That is our essential role. But providing feedback does have some hazards.

We are human, so we process what our clients say and apply that to what we believe they are thinking or feeling. Some of our reactions may be based on our own backgrounds, prejudgments, thoughts and feelings. We may correctly assess what the clients feel or think, but there is also the possibility of being a bit off base. That’s why providing feedback may be helpful to clients, but sometimes it’s not. It’s important to be very thoughtful about any feedback or observations offered. We need to be very circumspect in this regard.

But sometimes an observation – I’ll call it the Elephant-in-the-Room observation, is begging to be exposed, brought to clients’ attention and discussed. It may well be something that needs to be addressed before effectively going forward in the mediation.

Here are some examples:  

• Calling out specific power imbalances for what they are.

• Being truthful about irreconcilable aims.

• Insecurities about money, that are not supported by actualities.

• Possible psychological issues that even a layperson like me can (perhaps accurately) identify.

• Parties not being truthful to each other about an action one wishes to take or the effect of that potential action on the other.

• Parties avoiding thinking about the nature and scope of their obligation to their partner after a marriage, even if it ends in divorce.

• Parties getting bogged down by minutiae, without thinking about the big picture.

• People having diametrically different views on what marriage (or their marriage) should be.

• People having different levels of commitment to the upcoming marriage.

In most cases, bringing these observations up can be very painful for the clients. Whether the mediation itself can handle something so important and potentially conflictual as these issues needs to be carefully assessed before embarking on it.  The exploration may solve the mediation matter, or it may make it go down in flames. But avoiding the decision as to whether or not to proceed, I believe, is a mistake.