Not The Smartest Person In The Conference Room

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After pondering about this for quite some time while exploring different law school pamphlets, I have come to realize that this conundrum could be attested to the “Curse of Knowledge.” You see, when an attorney mediator analyses the dispute at hand, he or she is cursed with the knowledge they already have about the legal standing of that case and thus will not go too far out of the box. On the other hand a non-attorney mediator will be more likely to ask the less likely questions and therefore invoke further ideas. These ideas, will surely serve as the outside the box suggestions which will in turn trigger different actions from either party in order to settle the dispute.

In the book Yes! Robert B. Caldini talks about the discovery of the double helix in the DNA. He writes that if Rosalind Franklin, a very intelligent British scientist did not have a much less experienced counterpart of James Watson and Francis Crick working on the other side of the globe on the very same dilemma, then the secret of the DNA would never have been uncovered. Watson went to explain that, “Rosalind was so intelligent that she rarely sought advice. And if you’re the brightest person in the room then you’re in trouble.” So even tough all three scientists were very much devoted to their work and to their goal, Watson and Crick were much more open and willing to embrace approaches that were outside of their area of familiarity. Collaboratively, going outside the box and not having their minds and egos clouded by the course of knowledge they were able to find the answer to the DNA.

In mediation, it is very important to explore all possible avenues of dispute resolution, no matter how far fetched they might seem at the time. However, It is also important for us as mediators to stimulate the thinking of the disputants in order to allow them to find their own answers. Remember, there is no such thing as a stupid question. But what do I know, I am not an attorney.

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Jim Halpert,   san francisco ca	12/06/08
Actually, some of the best mediators are retired judges and attorneys. Attorneys and judges are not "cursed with knowledge." The attorneys who mediate who do not "think outside the box" are simply bad mediators. A mediator needs to have many tools at his disposal. Should one of those tools be a thorough understanding of the law, then he has a great advantage. Having this knowledge is like being a Master Jedi is skiled in all ways of the force. You must use it only when absolutely necessary. But if you ask me, I'd still like to be a Master Jedi. Add New Comment

Jim Halpert,   san francisco ca	12/06/08
Actually, some of the best mediators are retired judges and attorneys. Attorneys and judges are not "cursed with knowledge." The attorneys who mediate who do not "think outside the box" are simply bad mediators. A mediator needs to have many tools at his disposal. Should one of those tools be a thorough understanding of the law, then he has a great advantage. Having this knowledge is like being a Master Jedi is skiled in all ways of the force. You must use it only when absolutely necessary. But if you ask me, I'd still like to be a Master Jedi. Add New Comment

James W Preston, Sr.,   Washington DC	jamespreston@justiceandmediation.com      11/10/08
My sentiments exactly. As a non-attorney mediator and a practicing EEO advocate, who has sat on both sides of the conference table, we are not blinded by the intricacies of law and how attorneys view a dispute. However, it's sometimes helpful to understand how lawyers or other advocates view the same issue; that's a learning opportunity. Regardless of who is in the room, the mediator must never loose sight of the fact that the mediation process belongs to him/her, and the content of the dispute is (owned) by the parties who are in disagreement. Regardless of stripe, the mediator is to ensure that both parties get heard, options toward resolution are explored, and creativity is used to help guide the disputants toward mutual and successful resolution. The parties in dispute should never have the feeling that the mediation process has been highjacked by the mediator, and the settlement agreement is something that the mediator wanted and not them. Add New Comment

Shelly ,   Tulsa OK	shkamm@tulsamedation.com      11/05/08
Comments: Not The Smartest Person In The Conference Room
Alex, I enjoyed your article. As a non-attorney mediator who owns an office where we mediate as well as train mediators in the state, I still run across this feeling from attorneys who often times are there by order of the court. Thank you for your insight. Add New Comment

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