How Not to be a Mediator

By Dr Mike Talbot

It caught my attention, scouring for articles on mediation as I do, that Donald Trump’s messengers in the supposed negotiations between Russia and Ukraine are now casually referred to as ‘mediators’ and their mission as ‘mediation’. There are also occasional references to them as ‘emissaries’ or ‘envoys’, which would be closer to the truth, but their mission and role are now frequently referred to using the ‘M’ word!

While I had an instant reaction to this, I thought I would use the Kushner/Witkoff example to look more closely at who and what we mean when we refer to people (and ourselves) as mediators: what are the basics for anyone hoping to take a role in resolving others’ disputes, in workplaces, businesses, neighbourhoods, or even in international armed conflict? When are we mediating and when are we doing something else?

Impartiality

Mr. Kushner’s private equity firm, ‘Affinity Partners’, has a $6 billion fund, 99% of which comes from foreign sources such as Saudi Arabia, Qatar, and UAE, amongst others. He does billion-dollar business deals with foreign governments and after meeting with Putin this week he said - on camera - that resolving the war could lead to potential ‘…mutually beneficial Russian-American projects’.

Ouch. Where does this leave the Ukrainian delegation? How might they have also felt when Mr. Witkoff commented - again on camera - that he had found Putin to be ‘gracious’, ‘smart’, and ‘straightforward’?

Anyone taking the role of mediator needs to demonstrate to the highest degree that they are fully impartial. Disputing parties in a workplace dispute, business conflict, complaints scenario or any other high-tension situation are ready to sense partiality. They even expect it. As dispute resolvers, we must go to great lengths to really demonstrate that we have no vested interest in any outcome, and to show the parties, not just tell them, that we are treating both sides equally.

Discretion and confidentiality

Not particularly camera-shy, Kushner and Witkoff love to do a press conference after each conversation they have in their ‘mediation’. This week, they came on stage to feed back to the world, in front of Zelensky, that what is needed is a ‘...win-win deal that helps Putin achieve his aspirations’.

Given that Putin’s aspirations are to seize and control as much of that country as possible, this is hardly a discrete, trust-building comment to make.

In every mediation case, actual mediators work confidentially. We usually try and stay under the radar altogether, rarely disclosing whose dispute we are even working with; we keep to ourselves anything that is said in mediation, not even retaining notes that would be discovered, and never pass on without permission anything one party says about the other. Press conferences are out!  

Expertise and experience

Kushner and Witkoff are real estate investors. Their whole misuse of the ‘win-win’ phrase, their framing of the resolution of the dispute as a commercial deal that ignores the whole history, context, and underlying interests of the two sides, clearly shows their lack of expertise in the careful handling of disputes about deep-seated and historical grievances. Real diplomats, including those that the US has available, must be fuming!

While it has been said that some mediators are born, not made, we believe there is a set of essential skills and attitudes that need to be learned before anyone can skilfully and effectively handle deep-rooted conflict. These guys really haven’t got it! We at EU Mediation also see the development of mediators as not just acquiring a toolkit, but as starting to think like a mediator: something the current series of articles from our sister organisation, UK Mediation, explores in some depth.

So, if you find you are called upon to resolve disputes in your workplace, neighbourhood, business, or other setting, hopefully you might be able to up your own game by learning from these two emissaries’/envoys’ mistakes. Or if you are just starting out and want to get off on the right foot as a dispute resolver, do give us a call.