Two Forms of Silence at the Mediation Table

Not every participant who appears less engaged than the situation calls for during a mediation session presents the same challenge for mediators. Some people genuinely want to resolve their dispute but struggle to speak up and express their views. Others attend the session but behave in a way that suggests they never truly intended to engage in the mediation process, despite claiming otherwise. On the surface, the two situations can look similar: hesitation, short answers, reluctance to commit, but they require very different response skills from mediators.

1. Hesitant Participants

These participants genuinely want to work things out. Their difficulty lies in finding the words to express their thoughts and wishes, not in deliberately withholding them. During the mediation session, this often appears in the following ways:

• Rather than firmly voicing a genuine objection, they tend to agree to too many proposed solutions without meaningful negotiation and without offering alternatives of their own.

• As the discussion approaches a sensitive topic, their responses shift from specific and direct to broad and noncommittal, sometimes trailing off before they finish a thought.

As mediators, we pay close attention to the moment participants' responses begin to shrink into shorter sentences, longer pauses, and fewer details. We also make sure that when an agreement is reached quickly, without counterquestions or hesitation, it reflects genuine consent rather than mere compliance.

To help hesitant participants overcome their fear of speaking up, as mediators we usually use some of the following techniques:

• Slowing the pace of the discussion and allowing silence, giving participants time to complete their thoughts rather than abandon them.

• Asking smaller, more specific questions instead of broad, open-ended ones that call only for a yes or no answer, making it easier for participants to respond concretely.

• Holding a private caucus with only the mediators and the participant, providing a space where they can speak more freely without an audience.

2. Participants Lacking Genuine Commitment

These participants do not struggle to engage in the mediation process; they deliberately avoid meaningful engagement. Although they may claim to be participating in good faith, their conduct often suggests that they have little or no genuine intention of working toward resolution. During the mediation session, this may appear in the following ways:

• Their position changes from one part of the session to another, not in response to new information but seemingly at random, suggesting they are testing what they can gain rather than working toward an agreement.

• They may appear agreeable during the discussion but resist having any proposals summarized, documented, or scheduled as next steps, leaving nothing that could hold them accountable for what was discussed.

As mediators, we carefully track proposals throughout the session to assess their consistency. Inconsistencies that cannot be explained by new facts are meaningful signals. Resistance to documenting proposals or to jointly calculating the costs and consequences of the alternatives discussed during the mediation is another indicator.

Put simply, someone who is willing to talk but unwilling to engage in discussions that are sufficiently detailed to identify a fair and workable solution for everyone is often avoiding accountability rather than avoiding conflict.

To address these behaviors, mediators rely on several techniques:

• Neutrally identifying inconsistencies and asking the participant to reconcile them, placing the responsibility for explaining the discrepancies on that participant.

• Preparing a written summary of the discussion with all participants, including the reluctant participant, and asking directly whether they are willing to confirm that it accurately reflects the discussion and whether they are prepared to proceed on that basis. Their response often reveals whether there is genuine intent behind the conversation.

3. The Key Difference

The participant who struggles to speak is working with the process, even if imperfectly, and responds to patience, structure, and privacy. The participant with no real intent to mediate is working around the process, and responds only to direct, unambiguous questions aimed at finding out whether they'll actually commit to anything. Telling the two apart early allows mediators to spend effort where it will actually help, and avoid mistaking strategic non-participation for a hesitation that simply needs more time.