The A-Z of Mediation: Unreasonable Conduct

Unacceptable conduct can include, but is not limited to:

Abusive behaviour
Including disrespectful language, shouting, threats, offensive gestures, or name-calling.

Not taking part in good faith
If one party is delaying the process for no good reason, or if they are being deliberately difficult to communicate/negotiate with.

Power imbalance
Sometimes seen when parties are on different levels within an organisation, with the more senior employee using this to gain leverage in the negotiations.

Coercion
If a party feels pressured into agreeing to something, or perhaps if they’ve been coerced into attending in general.

But what can we do as mediators if we see any of the above?

Mediators may first utilise side meetings to address unreasonable conduct, taking one party aside for a private conversation. This is sometimes needed because totally open and uninterrupted communication between parties is not always productive and can actually lead to escalation or impasse. This is particularly useful if power is extremely imbalanced, if one of the parties is persistently breaking the ground rules, or if the process is stuck/communication has stopped.

And, while most mediation cases are likely to come to a constructive outcome, there are circumstances that could lead to the mediator terminating the mediation. Commonly, this is because a party is not negotiating productively (persisting in threatening or disrupting behaviour) or if a fair negotiation is unlikely (the power difference meaning that one party has no negotiating power).

Mediators often employ a ‘three strikes’ rule, giving parties three opportunities before terminating the mediation.

A script for this may look like:

1. “Maria, you have agreed to the rule about… (name-calling, etc.) Can I please have your commitment that you will try to stick to that?”

2. “Maria, once again, I need to remind you of the rule that you agreed about… I need your commitment so that we can carry on. Will that be OK?”

3. “Maria, for a third time, I need to ask you to keep to the rule about… If it happens again, we are going to have to stop.”

4. Out: “OK. We stop.”

It is important for mediators to address unreasonable conduct at the earliest opportunity. It is our job to create a suitable environment in which parties can find a resolution to their dispute, and behaviour of this kind can often get in the way.