Gut Instinct: A Mediator Prepares


by Robert Benjamin

This article was originally published in Family Mediation News, the Newsletter of the the Family Section of the Association For Conflict Resolution, Summer, 2001

April 2002

Robert Benjamin Mediation is commonly touted as a rational enterprise. Most people—and many mediators--- see it as essentially head stuff where parties come and reason together. As the field matures and mediator qualifications are considered, invariably training regimens focus on legal, psychological and financial knowledge. Some would go so far as to require degrees. Those credentials are useful. However, my fear is, that formal education and training are being given an undue emphasis and tending to displace the development of intuitive abilities and instinctual understanding.

I am a lawyer and social worker by training. By traditional standards I am well prepared. My own sense of that experience suggests that study was helpful but not in the way expected. Specifically, I was usefully confused. I was professionally schizophrenic—not easily accepted in legal circles or by mental health professionals. Lawyers and Judges could not reconcile my concerns for therapeutic considerations with the legal frame of inquiry, and social workers often thought I was preoccupied with legal rights. Mediation was attractive to me because it appeared to allow for the simultaneous integration and balancing of both disciplines, as well as others. In looking back, I think other experiences were more germane, more useful and formative than my professional training. Those experiences required the quick development of street sense for my survival and sanity. There I gained the core skills and confidence I use to this day as a mediator.

For a number of years I was an aid in an adolescent psychiatric facility. Prior to that, I worked in an institution for the mentally retarded—back when those places could still be aptly described as “snake pits.” In both institutions, suffice it to say that there was not much help or supervision by the staff professionals. If a twelve year old was about to throw a chair through the nurses’ station window with me and six other kids in between, the attending psychiatrist was nowhere to be found, and if present, it seemed he could not get off the ward fast enough. Over his shoulder, on the way out, he would mutter something like, “you handle it.” That was my early introduction to conflict management.

The situation might be better today, although I am not sure. I know there are more rules and supervision, but whether or not the quality of care has improved is still an open question. I am sure that I had the benefit of invaluable experience—probably and admittedly at the expense of a few clients. I was required to figure out what works and what does not and had the opportunity to examine my own responses and develop instincts essential for negotiating and managing conflict. While most people in mediation are not psychiatric patients, their responses under stress bear a remarkable resemblance to the ward behavior I observed. In both circumstances the people concerned feel trapped and are often angry and frustrated. If I had my way, part of training would require would-be mediators to work in just such a setting. If you show me an effective mediator, there will likely be some experience in his or her background that offered a similar opportunity to learn.

Formal professional education cannot offer the kinds of experience critical for the training of effective mediators. We have become over intellectualized—so caught-up in the throes of our theories that we have shelved our intuitive sensibilities or abandoned them altogether, relying instead on rules and formulas for how to respond.

Some of what I learned back then runs counter to what is commonly taught in mediator training programs. Insisting on rules of behavior, punishing infractions, or appealing to reason often work no better with a twelve year old chair thrower than they do with a client in mediation exercised about the unfairness of his or her predicament. I quickly learned tricks of the trade: what tactics tended to moderate and the things to avoid saying or doing that would tend to exacerbate the situation. While it is accurate that intuition cannot be taught, there are ways to encourage its’ development. At the very least, instinct and intuition should not be ignored.

Teaching and practicing the strategies, techniques and skills of mediation are as much about unlearning and re-learning as they are about learning anew. The best professional practitioners in any field, mediators included, come to appreciate the value of ‘tacit knowing’, hunches and intuitive understanding. (Donald Schon, Educating the Reflective Practitioner, 1987). Albeit subjective and not given their due in our techno-rational world, they are critical to success. We are all socialized and educated to follow formulaic, scripted approaches. This is especially true for mediators. For example, often those practitioners who take a facilitative approach disdain any technique that shows a hint of being directive. Others, seeing mediation as only about outcome, hesitate to discuss the emotional aspects of a dispute. The stroke of genius occurs, and the mediator turns from being a novice to sophisticated practitioner when he or she leaves the beaten path of received wisdom and allows their creative instinct to run free. Too often we are held prisoner by our theories that dictate what we should do and our training runs roughshod over our instincts.

Many mediators have been conditioned to believe their role as an impartial third party obligates them to be thoughtful, empathic and reasoned. Conventional wisdom about the process—encapsulated seeds of truth about what we think, know and should do—typically holds sway. While that notion has some value, it should be carefully scrutinized. Crazy wisdom—incongruous, paradoxical and instinctual thinking—can often release energy and allow for different views to emerge. For instance, the calculated and strategic use of anger and frustration can sometimes be necessary and effective. Sometimes the mediator might usefully be strategically anything but empathetic. Crazy wisdom, anchored in instinct, can often break the most intractable log jam.

No theory can take the place of gut instinct. When your own gut is telling you the situation is aggravating and frustrating, that energy can be converted and used constructively. That does not mean blurting out the first thing that comes to mind, or telling a party their view is illogical or stupid. After editing, however, the mediator can offer his or her own frustration for collective examination and that reflective process can be turned back on the issue at hand. People in conflict deserve to have the presence of a passionate, active and engaged mediator, not an impassive functionary. Mediators would do well to remember that the heart of practice is not technical expertise, but gut instinct and intuition.



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Biography




Robert Benjamin, M.S.W., J.D., has been a practicing mediator since 1979, working in most dispute contexts including: business/civil, family/divorce, employment, and health care.  A lawyer and social worker by training, he practiced law for over 25 years and now  teaches and presents professional negotiation, mediation, and conflict management seminars and training courses nationally and internationally.  He is a standing Adjunct Professor at  the Straus Institute for Conflict Resolution of the Pepperdine University School of Law, at Southern Methodist University’s Program on Conflict Resolution and in several other schools and universities.   He is a past President of the Academy of Family Mediators, a Practitioner Member of the Association for Conflict Resolution, and the American Bar Association’s Section on Dispute Resolution.    He is the author of numerous book contributions and articles, including “The Mediator As Trickster,”  “Guerilla Negotiation,” and “The Beauty of Conflict,” and is a Senior Editor and regular columnist for Mediate.com. 

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Website: www.rbenjamin.com

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