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Greek Philosophy And Mediation Practice

by David Hurley
July 2008 David  Hurley

I am always interested in finding pearls of wisdom that illuminate what we do, or that identify fundamental human experiences that validate steps in the process one otherwise might have taken on trust.

I also appreciate that one of the strengths of mediation is the unique contribution each mediator brings to the process.

So I was interested in Kendall Reed’s recent article on “The Mediator’s Triangle: Organising the Mediator’s Focus” with its description of Facilitation, Overcoming Barriers; and Motivation for Resolution. This triggered the thought to offer an additional albeit different comment, but with some parallels.

I have always tried to deal with emotional needs first in solution finding, to avoid money having to be a metaphor for, or carry the burden of unresolved pain. Kind of like crossing the last gap first so that it doesn’t become a problem at the end.

I am indebted to the ancient Greeks for a philosophical approach [1] that I have found valuable in both self-reflection and in practice and accordingly offer it as a contribution to the conversation.

The sequential steps are Ethos – character, trustworthiness, credibility; Pathos – empathy, emotions, relationships; and Logos – diagnosis and logical analysis of future options. [2]

I found these elements and the sequence make sense in

  • Reflecting on practice and preparation for mediation
  • Application in mediation
  • Explaining to parties the stages in the process (for example why I am focussing on emotions rather than “cutting to the chase”)
  • Giving the parties something they may find useful in their work and lives.

Reflections on Practice

Ethos

There are of course many papers and articles on what it takes to be a mediator. I have heard it described as “one doesn’t have to be a good person (i.e. saintly) but one has to be good enough” . Given that the primary role of a mediator is to make the process safe, then the mediator has to be a sufficiently safe and trustworthy person. To me this includes humility (to be guided by principles and ethics); to suspend judgment and to accept that the parties need to take their own time to find their own unique solution - no matter how obvious the result may seem; to conduct a process that meets the parties needs (as “pure” as possible but not necessarily adherence to a particular form); to be constantly looking for self improvement and willingness to accept new ideas from any source. The concept also makes me stop and think about how I prepare myself for each case.

Pathos

This sequence ties in with the developing interest in emotions as a major factor in helping people both overcome barriers and achieve lasting resolution. See e.g. Erin Ryan [3] and the books she reviews for an interesting typology of the ways in which emotions impact in mediation. Particular skills for mediators are in empathy, discernment of emotional messages and self-awareness of one’s own emotional reaction to issues as they arise.

Logos

This is one element that lawyers are skilled at – logical, rational costs and risks analysis of potential court proceedings.

Early in my career as a mediator however I was advised to ask the parties “what do you want to achieve from the process?” Money, whilst almost always being important, was seldom the first matter of concern. In desiring to categorise their answers I am indebted to Professor Mitchell Hammer of American University for his acronym S (for substance); A (for affiliation or attunement); F (for face); and E (for emotions.) In discussion with Ian Macduff [4] we preferred “ASPIRE”.

A stands for altruism. Those people who want to make sure that what happened to them doesn’t happen to any one else. Or that they don’t want any innocent bystander to suffer from their recovery action (e.g. former workmates would lose their jobs if the business goes under); or simply an expression of generosity of spirit.

S stands for spiritual values. Those who wish to start with prayer (first peoples) or who are concerned with their relationship with God as a result of the way they interact with this fellow human being. And apologies and forgiveness have their arguably spiritual place in human concerns.

P stands for personal factors – be it face, mana or simple human dignity.

I stands for instrumentality – costs and risks of litigation

R stands for relationships as for the original, and

E stands for emotions.

Application in Practice

A case study

The two women were co-directors of their firm. Each contributed a monthly fixed amount to the outgoings, but otherwise took their respective earnings – an arrangement that allowed each to work the days and hours they wished. The company also provided rooms and reception facilities to others giving similar services.

The directors did not complete a director’s agreement when they started (10 years ago) despite good intentions so to do. Subsequently one suffered a major personal tragedy and became bound up in grief. The other became over cautious in speaking to her. Over the following four years each became increasingly isolated from the other, felt unappreciated, resentful, and made increasing numbers of attribution errors about the other’s motives. To a degree there was friction over life styles choices. They began communicating by email. Anger reached crisis point. There was a strong likelihood of going their separate ways.

Each spent some time discussing with me the process of mediation (and assessing how they felt about me) before agreeing to come.

They both expressed a lot of relief after their respective opening statements – they had been able to enunciate deep feelings that had been simmering for years.

Both wanted to continue the relationship but only on the condition that the other wholeheartedly did also. There was a major issue of trust. So we explored that option first.

The primary issue was obviously dysfunctional communication. So we spent some time on the theory of communication (see e.g. Edelman and Crain “The Tao of Negotiation” [4] ) the use of “I” statements and practised some confidence building exercises around that. They worked extraordinarily hard – swapped places and wrote lists of things they thought the other needed from them (proved to each other they had listened) and then thought about what else they might need. The two lists for each of them were almost identical. They then sorted the major practical issues that had overtones of emotional misunderstanding (how to value office administration compared to proactive lecturing, an issue that raised the time each spent in the office, and that was underpinned by life style choices) and devised processes to fix other mechanical aspects of the directors’ agreement. Apologies and concessions were extended to each other. They ended with two agreements – one on communication and behaviours (settled on the day) and the other on business details (to be completed but using the new techniques). Exhausted but elated.

During the process it became appropriate to describe how I had spent time talking to them before the mediation to establish trust, why dealing with emotions and restoring trust between them was the appropriate step after the expressions of feelings; and leaving the diagnosis of the issues and logical outcomes to the end. So the process itself became the metaphor for the sequence of steps they were challenging each other to take. And they readily recognised the relevance of the philosophy to their lives and the work of their company.

It was one of those cases at which it was a great privilege to be present. On this day with these parties I found the depth of meaning that the philosophy gave to the process, and the ease with which the parties identified with it to be very helpful.

End Notes

1 Quoted in the daily tear-off calendar for “The 7 Habits of Effective People” for Thursday 22nd May 2008. The philosophy was mentioned in relation to making presentations.

2 In discussion with a Buddhist Monk friend she commented on the similarity with process she described of “unknowing” – that is suspension of one’s understanding so one is able to be open to another; “being in the moment” - true empathy with the other so that there is full understanding of the other’s needs; and then “loving action” – the logical caring outcome. See also P. Senge and Others in “Presence, Human Purpose and the Field of the Future” 2004 SoL describing the “U” Process – (illustrated on p.225 of the book) namely “sensing” i.e. suspending judgment and being open; “presencing” i.e. letting go to let come; and creating.

3 Negotiation Journal Vol. 22 No. 2 (April 2006) 207

4 Until recently of Victoria University of Wellington and Director of the NZ Institute for Dispute Resolution, now at Singapore Management University.

5 1993 Harper Business p 62 et seq.

Biography


David Hurley LLM is a mediator with the Department of Labour based in Wellington, New Zealand. He has been full time in dispute resolution since 1991 formerly as a Member of the Employment Tribunal (mediations and adjudications) but has been focussed on mediations since 2000. Whilst mainly involved in employment matters he has also mediated family and commercial cases and for the Waitangi Tribunal. The last involved an intra-cultural case that he co-presented to the then SPIDR AGM in Los Angeles in 1996 with his co-mediator the late Sir Hoani Turei, a Tribunal Member. He has contributed articles and papers to LEADRNZ, AMINZ and NZ Law Society conferences and periodicals and contributed a chapter “Restorative Justice in the Civil Jurisdiction” to “Restorative Justice and Practices in NZ: Towards a Restorative Society” (2007 Maxwell and Liu ed., Institute of Policy Studies VUW). He is a tribal associate of Ngati Rangiteaorere, has been a Vice-President of the NZ Law Society and has chaired a number of charitable organisations. His contact is david.hurley@dol.govt.nz.

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