Mediation Ground Rules, Who Needs Them?
I'll start with a confession that may raise a few eyebrows among my colleagues: I don't use ground rules in mediation. I never have. I don't open with "one person speaks at a time," I don't ask anyone to keep their voice down, and I don't remind people to be respectful before they've had a chance to show me who they are. That doesn't mean I never would, because ground rules are a tool and I believe in keeping every tool in the toolbox. It means that over years of sitting with families, teams, and healthcare and business leaders at some of the hardest moments of their lives, I believe the rules might cost more than they give.
I know this is a contested conversation in our field. Some mediators I respect deeply consider ground rules the foundation of a safe session, and I understand their reasons. I'd like to offer another way of looking at it and invite you to try it on.
What Do I Say Instead of Ground Rules?
Skipping ground rules doesn't mean skipping the conversation about how they'll be together. In my opening, I tell people that mediation works best when people are honest and when they listen. Then I'm candid about what listening usually looks like when we're in conflict. I know that we often listen to figure out where the other person is wrong so we can tell them, and I ask them to try something different here: to listen for what is right. To listen to understand.
I also tell them that during mediation they are likely to hear things they don't agree with. I mean, if they agreed with everything, they wouldn't be here with me. The other person may have a very different memory of what happened, or a very different perspective on what happened and what it meant. That's normal. We're all different, so we see things differently, and hearing a version of events that doesn't match ours doesn't mean anyone is lying or that the mediation is failing.
Then I ask them to make a plan. When you hear something you disagree with, and you probably will, how do you want to be in that moment? What will you do with it? I don't ask them to tell me their solution. Often in mediation we're planting seeds, and this is one of those moments. Some people tell me anyway that they'll write it down so they can come back to it. Some say they'll take a breath or ask me for a minute. Whatever they choose, the plan is theirs, made with a clear head, before the hard moment arrives. That gives them something a rule can't: a way to lead themselves through it. This is usually where I explain caucus, too. If it gets challenging, we can take a break and talk about what's going on.
Why Do People Shut Down When They're Reminded of the Rules?
I do a lot of mediation coaching and mediation skills training, and I watch closely what happens when someone is called out or reminded of the ground rules. They stop talking. They shut down. Their attention moves away from the conversation and toward getting it right, and they start focusing on saying the good thing or the right thing rather than the true thing. When people put their energy into behaving well, they have less of it left for thinking well. The part of them that should be listening, remembering, and considering options is busy monitoring themselves instead, and that's the work mediation depends on.
Part of what's happening is shame, and shame is where ground rules and parenting meet. Every mediator learns from the ones who came before, and the teacher who influenced me most is Ken Cloke. Ken taught me to think about being with people rather than being over them in mediation, and that distinction has shaped how I practice. When I enforce the rules, I'm over people. I'm refereeing and judging, and when I referee, I'm parenting. We've all had parents, and I'd guess you remember what being corrected felt like as well as I do. Being corrected stings at any age, and it stings more in front of someone else. Now imagine being corrected in front of the very person you're in conflict with. It can feel like a win for them and a loss of face for you.
When things go off track, it's often because someone is triggered. Triggers are real, and they fire before we think. The body reacts first and the thinking brain catches up afterward, and that is exactly when "Ah, ah, ah, remember the ground rules" lands hardest, the same way it did when we were children. I have not seen shame open anyone up. I have seen it close a door we've spent the first hour trying to open.
That's a real loss, because the best information in a mediation rarely arrives polished. It shows up sideways, in the comment someone didn't plan to make, the aside under their breath, the heated back and forth where both the agreement and a solution often fall out of someone, the random detail that seems beside the point until it turns out to be the key to the whole thing. Those inside hints give us a better picture of what's going on, and they surface when people feel free to talk. When I control how people speak, I end up controlling what they say, and that's a consequence I never intended.
What I reach for far more often is a simple pause: "Wait, let me see if I understand." It slows everyone down, including me, and nobody has been told they did something wrong.
What Happens to Neutrality When We Enforce the Rules?
The person being corrected isn't the only one listening. When I tell one party they aren't playing nice, the other party hears it too. They may feel vindicated, and they may even gloat a little. In that instant, in both of their eyes, I'm on someone's side. Trust in a mediator's impartiality takes a long time to build and very little time to lose, and both people need to believe I'm there for each of them.
What Happens When We Ask People to Tamp It Down?
What I see in training has research behind it. In two studies by Emily Butler, James Gross, and colleagues, pairs of strangers talked through an upsetting topic while one person was asked to keep their emotions from showing. Suppressing disrupted the conversation, raised blood pressure in the person suppressing and in their partner, and reduced the rapport between them. Earlier work by Jane Richards and James Gross found that people who suppressed their emotional expression remembered less of what they heard while they were doing it. (Has telling anyone to calm down ever helped them calm down?)
Now think about what we ask of people in mediation. We ask them to listen to someone they're angry with, remember what was said, weigh options, and make decisions they'll live with for years. Those are the very capacities suppression seems to tax. When we tamp down emotion, we may be tamping down decision-making right along with it, narrowing the options people can see at the moment they most need to see them all. None of this means anything goes. It means our job is to help people work with what they feel, rather than ask them to check it at the door.
Who Are the Ground Rules For?
I'd argue that ground rules are not for the participants as much as it is for the comfort of the mediator. We don't know these people, their communication style, or their capacity for discomfort. We don't know what they consider okay in a dispute or where their lines are. Consider the word "respectful." In the ground rules I've seen, mediators say something akin to, "We will talk to each other respectfully." Rarely is respect defined. In the absence of that conversation, the meaning becomes, "We will talk to each other in a way the mediator decides is respectful." Respect means different things to different people. Raised voices might be how a family has always talked, at the dinner table, in the car, and at every holiday, and what sounds like hostility to me may be ordinary intensity to them. I've had to ask myself more than once whether the parties were struggling or whether I was. Sometimes they were fine, and I was the one squirming in my chair.
People come to us in a hard time, about something that matters to them, and strong feeling comes with that territory. Perhaps we need to get more comfortable sitting with emotion, especially anger. The Gottman Institute describes anger as an iceberg: what shows above the water is the anger, and beneath it sit hurt, fear, shame, exhaustion, and needs that haven't been met. In my EVIN model (Emotions, Values, Interests, Needs), the emotion is the doorway into everything else. When we close that door early because it makes us uncomfortable, we lose the path to the interests and needs that make an agreement possible.
What If the Parties Want Guidelines?
You may have noticed the word changed from "rules" to "guidelines." I don't think I'm alone in feeling that, as a grown-up, someone I'm paying by the hour shouldn't dictate rules to me. Maybe it is just me? Guidelines, however, I can live with. If I learn in pre-mediation that the parties really struggle to talk, I may ask whether they'd like to set up guidelines. If they do, I invite them to design their own. I ask how they want this conversation to go and what would help each of them feel heard, and then I do what mediators do: drill down on the details. If one person says "respect," what does respect look like to them? What does it sound like? What would they like to happen if one of them gets frustrated or needs a break? I make sure both of them agree on every piece before we move on.
That changes my role. I'm no longer enforcing my rules on them. I'm helping them keep an agreement they made with each other. If a moment gets hard, I can ask, "You both said this mattered to you. How are you doing with it?" That question invites reflection instead of compliance.
What Do I Do When It Gets Heated?
When a conversation gets heated to the point that it isn't productive anymore, or people start circling the same sticking point, I stop and summarize. It sounds something like, "Okay, you both have a lot going on here. Let me make sure I'm following. This is what I'm hearing…" and then I reflect back what each person has said, including what they seem to be feeling.
A good summary does far more than regroup the conversation. It buys time for everyone's chemistry to settle (the Gottman’s call that overwhelmed state "flooding") and helps bring the thinking brain back online. The brain science supports this as well. In a 2007 imaging study at UCLA, Matthew Lieberman and colleagues found that putting feelings into words reduced activity in the amygdala, the brain's smoke detector for whatever matters to us, and increased activity in a region of the prefrontal cortex involved in regulating emotion. When I name what someone seems to be feeling, I'm doing some of that work alongside them.
Since then, the research has grown. A meta-analysis of 48 brain imaging studies by Jason Buhle and colleagues at Columbia found that reappraisal, changing how we think about something in order to change how we feel about it, consistently engaged the brain's cognitive control regions and turned down activity in the amygdala. In a 2018 review, Jared Torre and Matthew Lieberman described naming feelings as a form of emotion regulation that works even when it doesn't feel like regulation, with effects showing up in what people report, in their bodies, in their brains, and in their behavior.
A recent systematic review adds an honest nuance: naming emotions consistently settled the body's reactions, even when it didn't always change how people said they felt. In the room, that means a good summary may be working before anyone feels calmer, including us.
A summary also lets each person know they've been seen and heard, which often eases the need to keep pushing. It lets the other person hear the message through a neutral, nonjudgmental voice, without the heat and history that came with it the first time. And it ends with a question that points forward. These are some I use, and some I'm still trying on:
Where would you like to go from here?
What would it take for this to feel like a better outcome for you?
What's most important for the other person to understand right now?
What do you want to make sure doesn't get lost in all of this?
What has worked between the two of you before, even a little?
If this conversation went well, what would be different tomorrow?
If they made a plan in the opening for how they wanted to handle hearing something they disagree with, this is a good moment to come back to it: "Earlier you said that when this happened, you wanted to… How's that going?" And if the room needs more than a summary, this is when that caucus I mentioned in the opening comes in handy.
When Would I Use Ground Rules?
I want to be fair to the other side of this conversation, because there are rooms where clear agreements about behavior serve people well. When there's a history of intimidation, coercive control, or violence, structure is a safety matter, and careful screening comes first. Large group facilitations and public meetings often benefit from shared norms everyone can see. Some people ask for structure because it helps them feel safe enough to speak, and some programs build it into their process. Even in those rooms, I'd invite the parties to write their own guidelines with me. People hold an agreement differently when it's theirs, guidelines honor the adult in each of them in a way rules don't, and it keeps me out of the parent's chair.
What Will They Remember?
People may forget what you said, the old saying goes, but they'll never forget how you made them feel. The parties won't remember the ground rules. They'll remember whether they felt trusted, whether they felt heard, and whether someone in the room believed they could find their way through.
Leading with rules sends a quieter message, too. However gently, it tells people they might be trouble. I'd rather hold the bar high. When I believe in people and in their ability to handle a hard conversation, I give them the chance to rise to the occasion. I believe they can, and that is what I almost always see. I've had many a mediation where people told me afterward that my believing in them, my holding hope when they couldn't, gave them hope.
I don't think the path from stuck to solutions is a straight line. In the transformative model of mediation developed by Robert Baruch Bush and Joseph Folger, which I trained in at Hofstra, people in conflict can spiral down into vulnerability and self-focus, shift toward strength and toward each other, slip back, and then climb again. Small steps count. It's often two steps forward and one back. I'd hate to be the one who robbed someone of the chance to do that hard, emotional work, even when it's muddy for a moment, because I only accepted good behavior.
There's another reason this matters. People can behave well for a few hours in mediation, but many of them will be in each other's lives long after we leave the room: siblings caring for a parent, colleagues sharing a hallway, parents raising children together. Robert Emery and colleagues followed families who had been randomly assigned to mediate or litigate contested custody disputes. Their mediation was problem-focused but emotionally informed. Twelve years later, the nonresidential parents who mediated were more involved in their children's lives and saw them more often, without more conflict between the parents. Making room for emotion in the room helped shape the years that followed. Working through it honestly, feelings and all, is how people build something they can live with together.
What might change in your next session if you trusted the people across the table to rise?
Key Takeaways
Ground rules are one tool in the toolbox, helpful in some rooms and costly in others.
An opening that invites honesty, listening to understand, and a personal plan for hearing hard things can do the work rules are meant to do.
When people are reminded of ground rules, they often feel called out and shamed, shut down, and put their energy into behaving well instead of thinking well.
Enforcing rules puts the mediator in a parenting role and can cost trust and perceived neutrality.
Research links hiding emotion to strained communication, higher blood pressure for both people, and weaker memory.
"Respectful" is usually defined by the mediator, so it's worth asking whose comfort the rules protect.
Calling them guidelines instead of rules, and letting the parties write them, honors the adult in each person.
Stopping to summarize helps a heated conversation settle and move forward.
A 12-year study of custody mediation found lasting benefits for family involvement when mediation made room for emotion.
Frequently Asked Questions
What Are Ground Rules in Mediation?
Agreements about behavior during a session, such as speaking one at a time, not interrupting, and avoiding name-calling, usually introduced in the mediator's opening.
Are Ground Rules Required in Mediation?
Not universally. Some programs and courts include them in their process, so check the requirements that apply to your work.
What Can a Mediator Say in the Opening Instead of Ground Rules?
Invite honesty and listening to understand, let the parties know they will likely hear things they disagree with, ask each person to plan how they want to respond when that happens, and explain caucus as an option if things get challenging.
What Can a Mediator Use Instead of Ground Rules?
Guidelines the parties write themselves, with the mediator asking clarifying questions until both agree on what each one means in practice.
What Should a Mediator Do When Mediation Gets Heated?
Stop and summarize what each person has said and seems to feel, then end with a forward-looking question. If more is needed, take a break or move to caucus.
When Do Ground Rules Make Sense?
When there are safety concerns, power imbalances, large groups, or parties who ask for structure. Even then, letting the parties shape them builds ownership.
Can Mediation Help Relationships Last After Conflict?
Research suggests it can. In a 12-year randomized study of custody disputes, parents who mediated stayed more involved with their children than parents who litigated, without more conflict between the parents.
Bring This Conversation to Your Practice, Team, or Association
If you're a mediator who wants a thinking partner, I offer one-on-one coaching for mediators. We can work through a challenging case, a moment in the room that didn't go the way you hoped, or questions like the ones in this post about how much structure serves the people across the table. I also serve as a mediation coach across the country, including for the Supreme Court of Ohio Dispute Resolution Section, and helping mediators grow is some of my favorite work. [Schedule a conversation]
If your mediation program, bar section, or association is wrestling with these questions, I'd love to bring a training or keynote on emotion, trust, and process in mediation.
If you're considering mediation for a family, workplace, or business conflict, I help people find their best way forward, in St. Louis and nationwide. [Contact link]
About Kimberly Best
Kimberly Best, RN, MA, is the founder of Best Conflict Solutions in St. Louis, serving clients nationwide. Drawing on decades as a critical care nurse, she is a Missouri and Tennessee court-listed civil and family mediator, a FINRA arbitrator, and an adjunct professor at the Lipscomb University Institute for Conflict Management, and the creator of the Best Conflict Conversation Cards.
Sources
Benson, K. The Anger Iceberg. The Gottman Institute. https://www.gottman.com/blog/the-anger-iceberg/
Buhle, J. T., Silvers, J. A., Wager, T. D., Lopez, R., Onyemekwu, C., Kober, H., Weber, J., & Ochsner, K. N. (2014). Cognitive reappraisal of emotion: A meta-analysis of human neuroimaging studies. Cerebral Cortex, 24(11), 2981–2990.
Bush, R. A. B., & Folger, J. P. (2004). The Promise of Mediation: The Transformative Approach to Conflict (Rev. ed.). Jossey-Bass.
Butler, E. A., Egloff, B., Wilhelm, F. H., Smith, N. C., Erickson, E. A., & Gross, J. J. (2003). The social consequences of expressive suppression. Emotion, 3(1), 48–67.
Emery, R. E., Laumann-Billings, L., Waldron, M. C., Sbarra, D. A., & Dillon, P. (2001). Child custody mediation and litigation: Custody, contact, and coparenting 12 years after initial dispute resolution. Journal of Consulting and Clinical Psychology, 69(2), 323–332.
Lieberman, M. D., Eisenberger, N. I., Crockett, M. J., Tom, S. M., Pfeifer, J. H., & Way, B. M. (2007). Putting feelings into words: Affect labeling disrupts amygdala activity in response to affective stimuli. Psychological Science, 18(5), 421–428.
Richards, J. M., & Gross, J. J. (2000). Emotion regulation and memory: The cognitive costs of keeping one's cool. Journal of Personality and Social Psychology, 79(3), 410–424.
Torre, J. B., & Lieberman, M. D. (2018). Putting feelings into words: Affect labeling as implicit emotion regulation. Emotion Review, 10(2), 116–124.
A systematic review of the effectiveness of affect labeling: Is affect labeling effective for emotion regulation? Korean Journal of Health Psychology, 31(4). https://www.accesson.kr/healthpsy/v.31/4/1147/59715
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