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Fly Fishing and the Art of Mediation

by Robyn McDonald
October 2011 Robyn McDonald

The fly fisher is the epitome of calm, patience and skill– delightfully cunning, a gentleman and a scholar. In my humble opinion, lawyers (as well as mediators) “…can be divided into two parts…those who fish trout and those who don’t.”1 Disputants and attorneys in search of the right mediator need look no farther than to those mediators who embrace the principles of the devoted fly fisher.

Though any angler may cajole a fish onto a hook, it takes far more skill to become a truly accomplished fly fisherman. What makes a good fly fisher also makes a good mediator: a patience born of an inherent appreciation for the complexity of the sport – it unites all fly fishermen … and good mediators. So, what principles guide the fly fisher as well as the skilled mediator?

1. Thorough Preparation

“The fishing is always better on the other side of the stream… unless you cast with either hand.”  ~Anonymous
“Creativity, in the form of remembering small incidents and following hunches based on them, is a mark of a good fisherman.”2 

A good fly fisher3 studies the fish she pursues, the insects they eat, the water in which they swim, and the weather patterns that affect all three. She looks for what previously worked and what didn’t, so that she may succeed the next time.

Some mediators simply look to “settle the argument”– to achieve an agreement. The true mediator searches for more: turning his or her attention towards more complex inquiries: What are the common interests? What are the concerns? What are the underlying emotional triggers? Do the parties want to settle now, or at all? A good mediator is a skilled listener, intense observer, savvy diplomat, and swashbuckling navigator of the ship upon which the disputants and their crew sail.

Conflict must be examined in order to discover what is not working within the situation and why. Can the dynamics be altered? Is the relationship long term (marriage/family businesses), ongoing (feuding countries or a business/employment relationship), or a one-time encounter (a tortious happenstance)? As do fly fishers, skilled mediators prepare themselves to better achieve their goal: guiding parties towards a positive resolution.

Skilled Mediators are Prepared

An experienced mediator prepares for mediation. Regardless of the case’s complexity or the number of parties involved, time, energy and cost are always critical factors. The mediator works with parties and attending counsel (when relevant), before mediation. He or she engages in caucus (a confidential discussion between one side and the mediator), to explore the respective party’s interests and concerns, the legal, factual and emotional risks involved, and whether more information is necessary to engage in effective mediation discussions. This way, parties arrive in mediation with a clear understanding about what they have, what they need, and what they lack in order to move forward in the process. 

Well prepared, the experienced mediator isn’t intimidated by the conduct of either side; she has anticipated their possibility. The mediator diffuses the actions of a hostile or deflecting party. She helps parties to see the common interests and concerns, enabling the mediator to explore beneficial options and alternatives for the future.

2. Using the Right Tools When Needed

“[The rod:] …a piece of magic, an elegant thing, willowy and alive – a wand that when held in the hand communicates with the heart.”4
“[Attractors:] … fish seem to strike at them not because they are deceived, but because they bloody well feel like it.”5

The avid fly fisher carries hundreds of different kinds of flies in two or three tiny boxes; each is designed to entice a particular fish at a particular time. He modifies the set up at any given moment: a “Parachute Adams” fly may fail, where a “Copper John” nymph may do the trick; more or less weight may be desirable; stripping in the line or mending may be the difference between catching fish and getting skunked.

Mediators must always be prepared to pull out whatever tool they may have in their toolboxes which allows them to best serve the parties. This may include the use of differing styles of mediation (evaluation, facilitation, or transformation)6, reality checking, exploring the emotional undercurrents of one or more parties, or paying attention to non verbal cues; all techniques to help parties evaluate what they hope to achieve, and how they intend to go about it.

Some mediators are uncomfortable straying into other styles of conflict resolution, either because they feel these styles are unnecessary, or because the mediator discounts a style’s value. The skilled mediator knows that in the end, it is the parties who dictate what is necessary in mediation. Mediators must be willing to be flexible, working with what the parties need, and with whatever tools are required.7

3. Knowing How to “Read the Water”

“A knowledge of the needs of stream fish, plus a basic understanding of stream hydraulics will enable you to “read the water,” which is a fisherman’s term for being able to predict where trout and bass hold in streams.”8

Some fishermen just know where to fish, what fly to use, and when. As neutral facilitators, mediators are far more successful when we listen to what is said, as well as to what is not said by a disputant. Reading the mediation waters for hidden issues, concerns and emotions is a skill mediators must possess in abundance. Some are naturally gifted at this; others must learn through experience. Some never learn.

Mediators are Aware of their Surroundings and Maintain an Appropriate Stance

Fly fishers are constantly aware of their whereabouts and work to maintain their footing: keeping their balance in strong currents or gauging the distance to outlying branches to avoid entangling their lines mid-cast. Mediators also must keep a similar mindfulness. Negotiations are about satisfying the interests underlying a position. Skilled facilitators instill flexibility to a conflict, which allows movement in all directions, and which manages any emotional deadlock that attempts to force the parties into positions that they need to defend.

A good mediator assures the parties (through her actions) that she will neither take advantage of any party, nor be exploited herself. The mediator is open to reason and encourages equal openness by the parties. Trust inevitably develops between the mediator and the parties. Frequently, the mediator assumes a different stance, thereby creating an opportunity for progress: sitting in silence while the parties engage in emotional dialogue, or providing open ended questions that explore options and their consequence. The mediator may then gauge the right time to present the settlement demand or offer; the good news or the bad – and to do so with assurance.

4. Having Confidence in the Arc of One’s Cast

“It’s a painful business – learning to cast without hanging the flies in the trees…we learn to whip our flies under limbs and drop them like live things into a living current.” 9

In fly fishing, placing the fly exactly where it should go requires precision, delicacy and skill.  The presentation of the fly- that is, the manner in which it is laid on the water and encouraged to act- is as important as the choice of the fly. Fly fishers may spend a lifetime perfecting this technique.

Facilitation is an art. Some are born with it; some develop the skill through the quantity or quality of their experience. The skill, precision and delicacy of a mediator’s cast will determine if parties can see beyond their conflict, to accept the “fly” placed before them: the possibility and hope of resolution. Mediators who “chuck and chance” a simple figure from the other party, hoping for acceptance on the bait alone, may be met with refusal. More often than not, there must be more. A mediator must observe the parties, hear their underlying interests and concerns, be aware of the timing of presenting the appropriate offer or demand, in order for a party to not shy away from the possibility of a settlement.

At times, a mediator must present news that a party will want to refuse – the case value is lower than anticipated; the settlement demand is too high, the counter offer too low. Candor may be needed, but only when trust has first been established. True skill is needed for the mediator to float this particular fly in order for a party to accept it at all, let alone well. The “cast” must be well timed and landed delicately but confidently, for it to be considered. 

5. Knowing When and How to Set the Hook

 “Everything surrenders to the strength of the fish. Any attempt to snub or turn it will break the line.” 10 

If a fish has risen to the fly, it takes only a second to set the hook, sweeping the rod firmly but smoothly upwards.11 The fish is “hooked,” but may run in fear, surprise or anger. Any attempt to haul the fish to shore before it is ready may result in a lost fish; the anxious angler may yank the rod viciously upwards or sideways, hoping to force the fish into submission– resulting only in breaking the line or ripping the hook out of the fish’s mouth. 

Good mediators skillfully execute the timing and process of “setting the hook” during negotiations. If a mediator is inexperienced, he or she may not see that one party’s demand is too extreme or presented too early. Any attempt by the mediator to force discussion of a resolution at this point can cause the opponent to walk away from the table completely or to offer drastically less than originally anticipated. If a party has not been sufficiently heard, chances are high he or she will not accept anything that is presented as an option. The savvy mediator knows when to discuss the ultimate settlement proposal, and whether enough information has been exchanged to obtain a disputant’s honest response. A good mediator knows the right time to bring the matter to a close.

When parties come to the table in good faith with informed, reasonable expectations, a mediator can help create magic. If trust has been established, parties have been appropriately heard and validated, common interests and concerns have been vetted – the discussions of offer/counter offer may truly be considered. This doesn’t mean that the resolution will be easy, or that it will take place – simply that there is the possibility of resolution. The fish may fight– the party may bluster and splash, citing lost wages, “the best interests of the child,” bottom lines and emotional distress, but the fish remains attached to the line–for now.

6. Knowing When to Reel in the Line or Let the Fish Run

“You cannot fight a fish forever.” 12

Once the hook is set, the fly fisher must let the fish go where it will. It’s a simultaneous act of discipline and optimism. “…[T]he hope being that by and by when the fish is tired of going where it wants to go, it and the fisherman will still be connected by a thread that leads them to the same place.” 13 In the end, it is up to the fish to determine whether it will be caught or not. The fish that refuses to give up, having the strength, tenacity and guile to escape, lives to fight another day. The fly fisher who is patient, allowing the fish to run until it grows weary, will receive a prize worth treasuring: the experience of catching a worthy opponent.

Parties must, in the end, decide whether they are ready and willing to resolve a dispute. Do they believe that the benefits outweigh the risks of continuing to trial, or continuing to fight, or refusing to let go of the pain and anger? A mediator who has prepared thoroughly for the session, allowed the parties to express their emotions, concerns and hopes, and who has given parties the ability to safely discuss the options and alternatives- that mediator has provided the opportunity for each party to decide whether it makes sense to end the conflict. What the party does with the information is up to him or her.14

7.  Appreciating the One that Got Away

“The greatest fishermen get skunked.”15

“Floating one’s hat” is a quip for those fishermen who failed to keep their legs under them in the quest for the perfect fish. Many an arrogant fly fisher has lost a fish to a case of vanity, and myriad fish stories recount the memory of “the one that got away.”

Conflict resolution is an imperfect science; as with fly fishing, the participants can be insufferably stubborn.  It may be that no matter what secrets the mediator unlocks, no matter how reasonable the terms discussed– the parties may not agree. This is something the mediator must accept.  Perhaps mediation was scheduled too early and the parties need more information before coming to the table. Perhaps a plaintiff’s counsel or an adjuster has oversold a position to the client and is now trying to figure a way to diplomatically step back from it. Perhaps a party is so overwhelmed with emotional turmoil that it is impossible to understand the rationale behind closure at this time.

Regardless, this is a fish that broke off the line, and the mediator must recover and move on. Parties need to return to their situation, and reassess what must be done to positively further their circumstances: more discovery, a deeper understanding of the emotional entanglements that keep them from continuing forward, or an appreciation of the realities of taking the matter to trial. The mediator can learn from the experience.

The love of fly fishing originates not so much in the catch and kill as in the curiosity and desire to learn how to better one’s ability to catch and release for the next time. The same should apply to a mediator.

8. Appreciating the Bigger Picture

Some believe the only good fishing trip is one that ends with a lot of dead fish. Not to the perceptive fly fisher.

“To achieve mastery is to rise above the need to catch fish.”16

In mediation, it’s not about the deal. It’s about what the parties need to achieve. No matter how much a mediator (or an attorney) personally wants to get the deal done or the fact that either knows the answer to the problem, it’s what the parties want, if they want it. Only when both parties see sufficient value to resolving the matter will they do so. Whatever common goals may be achieved, resolution will only take place when both parties allow it to take place, and not a minute sooner. The experienced mediator knows and respects this.

9. Embracing the Love of the Sport

“Fish in the water represent pure potential. If the water is not clear, we do not know if they exist at all. To get them to bite something connected to a line and pull them into our world is managing a birth that brings these creatures from the realm of mystery into the realm of reality.”17

To the fly fisher, what began as fun develops into a lifelong love.  Most fly fishermen become more interested in the method than in the final outcome of fishing the fly. They gain an admiration for the fish; it is in the stalking, playing and landing of the fish that the fulfillment lies, not in the keeping and killing.

For the experienced mediator, it isn’t about the number of cases settled. It is the intrigue, the “angling” on honest terms, the appreciation of continually learning what works and what doesn’t work, which keeps the true mediator successfully in the field. With each mediation, the mediator gains appreciation for the dynamics of conflict - an understanding of the need to “mediate dangerously” if he or she is to successfully aid disputants in exploring all levels of the existing conflict.18

Conclusion:

 “The only hope for it all, I am afraid, is for the Lord to drive the trout fisherman into diplomacy, or else drive the diplomats to trout fishing.  My guess is either way we’d be more apt to have more peace: the fisherman-turned-diplomats would hurriedly resolve their differences on the trout stream so that they might return to their fishing, while the diplomats-turned-fishermen would shortly become so absorbed in their new passion that they would never again find time for war.”19

The principles of fly fishing and mediation run in the same stream, they just ride different currents. Each continues to challenge, surprise, enrich and fulfill. By following the principles of the gentle fly fisherman, a prepared mediator can work smoothly, taking few, if any notes. She is familiar with her equipment, watches the water, and checks the environment.  Working the stream, the mediator remains flexible, open and positive. The subtle changes in each fishing excursion are some of the reasons why the appeal of fly fishing is so great for so many people. It is the same with mediation.

Notes:
  1. Robert Traver, Trout Madness, at viii ((Simon and Schuster, 1989).
  2. Howell Raines, Fly Fishing through the Midlife Crisis, 122 (Harper Perennial, 1994).
  3. Though fly fishing has long been considered a “manly” sport, there are many avid women fly fishers, myself included.
  4. Fly Fishing, supra, p.20.
  5. Fly Fishing, supra, p.62.
  6. Kenneth Cloke, Mediating Dangerously: The Frontiers of Conflict Resolution, 11-12 (Jossey-Bass Publishers, 2001).
  7. Mediating Dangerously, supra, p. 11.
  8. Tom Rosenbauer, The Orvis Fly Fishing Guide, 137 (The Lyons Press, 1984).
  9. Fly Fishing, supra, pp.22-23.
  10. Fly Fishing, supra, p. 129.
  11. Ibid.
  12. Marty Bartholomew, Flyfisher’s Guide to Colorado, 523 (Wilderness Adventures Press, 2002)
  13. Fly Fishing, supra, p. 153.
  14. Kenneth Cloke, The Crossroads of Conflict: A Journey into the Heart of Dispute Resolution, 174-177 (Jossey-Bass Publishers, 2006).
  15. Fly Fishing, supra, p. 19.
  16. Ibid.
  17. Fly Fishing, supra, p. 107.
  18. Mediating Dangerously, supra, p. 4-10.
  19. Trout Madness, supra, at xi.

Biography


Robyn E. McDonald, Esq. is an avid fly fisher, mediator and arbitrator in private practice with McDonald Mediation Group, LLC; she is a licensed attorney in California and in-house counsel in Colorado. She mediates extensively in Colorado and offers ADR services throughout the Rocky Mountain Region. She is the President and a Professional Member of the Mediation Association of Colorado, Chair of the First Judicial District Access to Justice Committee and Director of the First Judicial District Access to Justice Mediation Program Pilot Project. She is a Founding Member of the Academy of Professional Family Mediators, a member of the Modest Means Attorney List Super Committee, established by Colorado Supreme Court Chief Justice Nancy Rice, and a member of the Jefferson County Mediation Services Advisory Committee.

 

 

 



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