The Mediator as Moral Witness


by David A. Hoffman

This article is also available at the Harvard Negotiation Law Review site,
where it was originally published in March 2013.

April 2013

David A. Hoffman This complete article is attached as a PDF file below.

People in conflict often present their claims in starkly moral terms: "I'm in the right -- the other party is clearly in the wrong." Mediators are trained to deflect argument involving moral claims from a focus on entrenched positions to a focus on underlying interests.

But what if the parties perceive their most profound underlying interest to be validation of their being “right”? What if each party is looking to the mediator to be a witness to the other party’s “moral culpability”? Is there a method that mediators can use to acknowledge, at a deep emotional level, the feelings that drive these concerns?

Social psychology teaches that we human beings are quick to judge each other's intentions, and we are hyper-vigilant about other people challenging our motives. If people impugn our motives, we have lost their trust, and they have endangered our reputations, which means we have lost valuable social capital, which is critical to our acceptance in the communities in which we operate. As Jonathan Haidt has written in “The Righteous Mind,” quoting Charles Darwin, “people are passionately concerned with ‘the praise and blame of our fellow-men.’” It is part of our genetic hard-wiring.

Accordingly, when the parties in conflict are castigating each other’s motives, they are chipping away at one of our most precious resources – our social capital, our reputations, our claim on the loyalty and affections of those around us.

What could be a more compelling underlying interest?

Thus, even if we mediators cannot get the disputing parties to one of those fabulous reconciliations in which they hug, they cry, and we all sing “Kumbaya” together, we can give the parties the next best thing. And that is the feeling of being heard in a deep way about their intentions and their motives, and their desire to do the right thing, their aspiration to being viewed as "good."

As mediators, we cannot say to either party “you’re right, and the other side is wrong,” because that would violate the principle of impartiality. What we can do, however, in an appropriate case, is this: we can say to each party that we understand that they were trying to do the right thing. Of course, the parties would probably prefer to hear that from the other party, but chances are, they never will. [Footnote: many of us have had cases where one party or the other ceded the moral high ground, at least in part, and apologized for what they did, and such apologies – particularly when authentic – sometimes lead to a resolution of the conflict.]

But, if unilateral or mutual apologies are not forthcoming, what if the parties each heard from the mediator the following: “I understand that you were trying to do the right thing.” This is not the same as saying "I think you’re right,” but from the parties' perspective, it might be the next best thing.

The article and case study linked below describe a simple tool that mediators can use, in appropriate cases, to acknowledge each party by validating their intentions.

Attachments



Mediator-as-Moral-Witness-2013-04-18.pdf The Mediator As Moral Witness  (Mediator-as-Moral-Witness-2013-04-18.pdf)


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Biography




David A. Hoffman is a mediator, arbitrator, and Collaborative Law attorney at Boston Law Collaborative, LLC.  He is past chair of the ABA Section of Dispute Resolution and co-chair of the Section’s Collaborative Law Committee.  He teaches the Mediation course at Harvard Law School, where he is the John H. Watson, Jr. Lecturer on Law.  He is the co-editor (with Daniel Bowling) of Bringing Peace into the Room: How the Personal Qualities of the Mediator Impact the Process of Conflict Resolution (Jossey Bass 2003).  



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Website: www.BostonLawCollaborative.com

Additional articles by David A. Hoffman



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 John  ,   Weston MA    04/25/13 
 The Mediator as Witness 
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The wife calls me after a long mediation session and says, "Do you know what you are? You are a witness." For her, that was my important role. As David says, your clients want your approval, and any acknowledgement you can offer is greatly appreciated as long as you appear impartial. I come to believe in many quarrels there is no truth. Each person has her or his own reality, often quite different. If both can hear from the mediator recognition that they are trying to do the right thing, that must be very comforting: a step opening towards a more constructive direction.
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