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The Art and Science of Summarization in Mediation

by Diane Cohen
Diane Cohen
There is nothing more important to a successful mediation than insightful summarization of the parties’ perspectives. In a workplace mediation several years ago, an employee was convinced that the supervisor was being disrespectful of her, and was singling her out for negative treatment. She gave many examples of such treatment, including his failure to say “good morning” to her, his yelling across the floor and his talking to her back instead of her face. When it was the supervisor’s turn to speak, he explained that he spoke that way to everyone on the work floor because of the volume of noise in the work place and for reasons of workplace safety. He went through each item and explained his reasons for his particular mode of behavior. After he spoke, the employee once again began to repeat her complaints. When she paused, I intervened and suggested that I summarize the issue. I said that it appeared that each party had a different idea of what was appropriate etiquette in the particular workplace where they were employed: The employee believed that appropriate etiquette required the supervisor to look at her when addressing her and to keep his voice modulated; the supervisor believed that appropriate etiquette—due to the volume of noise and the need to keep his eyes focused on potentially disastrous or dangerous situations—sometimes allowed for him to raise his voice and speak without looking at the person he was addressing.

I knew as I summarized this that it was important that I use the word “etiquette”, that I make it clear that there were different views regarding etiquette, and that the different views were a result of their different perspectives regarding the workplace. I was careful, as always, to keep the summary neutral, but to convey their different perspectives. I had the sense that using the word “etiquette” would transform the disagreement, but I was surprised at the speed with which it happened. Very soon after the summary, the employee said that she now accepted the supervisor’s behavior and had no more concerns about it. She seemed transformed: she was no longer angry, but calm and relaxed.

What is the essence of a good summary? In my experience a good summary does several things. First, it focuses the parties on the specific area of disagreement in a way that they did not previously understand it. So, here, the new clarity and focus was that it was a matter of etiquette and, more specifically, a matter of appropriate behavior in that particular workplace.

Second, it separates out the issues for the parties, when the matter is complex, or clarifies the issues when the parties have obscured their concerns with a lot of facts and examples. So, here, the employee had many examples of behaviors that felt bad to her. My job was to take all of them and put them in a category so that we could handle them all in one fell swoop: etiquette. In other cases, the dispute will be complex, and the parties may have been unsuccessful in breaking it down into manageable bites. A good summary in that situation would be to either list the issues or, if it is not clear from the parties’ statements how to break the matter down into concrete issues, to summarize the general difference of agreement and then to explore with the parties how to break down the matter into concrete issues. Once the mediator has helped the parties develop such a list, the mediator may then approach the discussion of each issue separately and may summarize the different concerns regarding each individual issue. In other words, in such a case, the mediator may be doing a series of summarizations. In fact, in most mediations, the mediator’s job is to begin with a summary of the issues, and continue throughout the mediation to summarize the perspectives of the parties as they change and develop.

Third, a good summary forces the parties to consider the issue from both sides. The employee now had to consider whether her expectation regarding the supervisor’s behavior was actually good “etiquette” in the workplace, even if it was good etiquette in other contexts. And the supervisor was forced to consider both whether he breached ordinary etiquette and if so, whether it was in fact justified on the basis of practical and safety issues in their workplace. Based upon the quick reaction I received, it was clear that both parties nearly instantaneously came to the same conclusion on these issues.

Fourth, it helps the parties focus on nuance by showing how the nuance fits into the main issue. In the case of the example I gave, the parties were able to focus on whether etiquette varies in different circumstances, whether different individuals might feel differently about what is appropriate etiquette, and whether differences in beliefs about etiquette were matters to be offended about or just matters to accept as differences of no great consequence.

In choosing the word “etiquette” it was important not to simply say that the issue was etiquette in their workplace, because that would not have been helpful or enlightening. In addition, it might have minimized the employee’s view of the situation as being “just” etiquette, and might have not highlighted the supervisor’s view that there were reasons for a different etiquette in the workplace. Thus, I needed to elaborate, to say that the supervisor had a different view of appropriate etiquette because of that particular workplace environment due to safety and practical reasons. This gave support to the legitimacy of the views of the supervisor. But it also gave support to the perspective of the employee, because implicit in my summary was the implication that the supervisor, if challenged, would be called upon to defend his position that his view of appropriate etiquette could be supported by specific safety and practical needs. Moreover, it gave support to the employee’s view that etiquette is important and not “just” etiquette and that an important reason was necessary in order to deviate from it.

My point was to show both parties that the issue was not “what is appropriate etiquette” or “whether etiquette applies to the workplace”, it was to show that the issue was “what is appropriate etiquette in that particular workplace”. By choosing the word “etiquette” I highlighted both the employee’s concern with the politeness of the supervisor’s behavior as well as the supervisor’s concern that the employee believed that the supervisor was violating a code of social conduct and extrapolating from that an attitude against her personally. I chose the word “etiquette” very carefully to convey all this and to define the issue very particularly. Defining the issue properly brings the perspectives and concerns of both parties to the table fairly and provides an informed view of the situation to both parties. When done appropriately it can literally put the issue to rest as it did in that case.

Fifth, a good summary is a combination of easy to grasp and enlightening. Toward this end, the way I deliver the summary depends upon the complexity of the summary. So, if I can summarize the matter in a simple sentence, then I simply state it and let is sit so that the parties can reflect upon it and think about what to say next. However, if my summary is necessarily complex, as it was in this case, I tend to repeat it several times, emphasizing different aspects of it each time until I believe the parties have absorbed the full nuance of the summary.

Sixth, every case requires good summarization, even when the parties have a good grasp of the basic issues in the case. If the parties are disagreeing, for example, about whether a contractor included two coats of paint in a job estimate, the parties will come in with a basic understanding of the disagreement. However, as the case unfolds, the underlying reason for why the parties can not resolve their disagreement will become apparent. At that point, the parties will derive a great benefit from the summarization by the mediator of that reason. Not every case will resolve as quickly or as dramatically as the example given in this essay, but nearly every case will benefit from one or a series of summarizations of the parties’ perspectives. As the parties work through their issues, they may get closer and closer to the core of their disagreement. By summarizing the perspectives of the parties at each point, the mediator can help the parties focus on the nature of their dispute at that point in time of the mediation. A good summary at each step of the way allows the parties the clarity and understanding to tackle the disagreement until they are able to come to a decision and feel certain of how they wish to move forward, whether by agreeing to a resolution, or otherwise.

Biography


Diane Cohen is a mediator in private practice and writes regularly on the process of mediation. Diane is an impasse mediator, and therefore mediates in all realms, but primarily in the family, divorce and workplace areas. Diane is a former co-president of the Family and Divorce Mediation Council of Greater New York. She has a J.D. from Columbia Law School, was certified as a community mediator by the Unified Court System in New York, and is a NYSDRA-certified mediator. She conducts workshops for mediators who want to work on their mediation skills.



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