Should traditional ground rules be changed?

Ground-rules, such as a pledge by the parties not to interrupt each other, can facilitate the mediation process.  They, however, also pose several risks that a mediator should consider in deciding whether to ask the parties to agree to them.  As an initial matter, the process of setting ground-rules can precipitate disputes that divert time and energy from the conflict giving rise to the mediation.  In addition, ground-rules may become the basis for gamesmanship.  For example, a party might accuse the other side of violating a ground-rule at a critical juncture merely to deflect attention from the current discussion’s focus.

Other practices can achieve the same objectives as ground-rules while avoiding these risks.  For example, the mediator can provide each party with pen and paper to take notes while others are speaking.  If a party is busy taking notes, then it is less likely he or she will interrupt or otherwise be discourteous.

The mediator also can go into caucus in the face of the parties’ indecorousness to explore the reasons for it, explain how it hinders the process, and help each party identify strategies to express interests and concerns without rancor.  Like an agreement to adhere to ground-rules, this approach makes the parties responsible for their own behavior, which in turn should lead them to take the initiative in resolving their conflict.

Contributor: Ben Jacewicz, NVMS Mentor Mediator