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Mediate.com

The Boundaries Of Engagement

by Michael Jacobs
August 2010 Michael  Jacobs

This piece comes with a health warning. First of all, it raises far more questions than it provides answers. And secondly, it offers a vigorous argument as to why pain and suffering should be hallmarks of mediator professionalism.

The context is failure. Having spent nearly five hours shuttling back and forth between two households, the presenting issues of parking and noise remained stubbornly unresolved. One of the parties has used the opportunity to allege harassment. Both parties are threatening to escalate the dispute into court.

As the mediator, I am struggling to retain any optimism. Less than an hour earlier, an agreement had seemed within touching distance. Ten minutes later it was gone. Towards the end I offer both parties a further session. The offer is never taken up.

I make no claims for this being an exceptional case. Not for a moment do I believe that every case can, should, or will result in agreement. Mediation, as we all know, does not come with cast iron guarantees.

Fortunately, mediators are a fairly resilient breed. Instead of falling apart, we tend to cope by reflecting on our practice. In this particular instance, I had a three hour drive home. For much of the journey I conducted a self-interrogation. What could I have done differently? What else? What more? The following day, back in the office, I shared my dilemma with colleagues, hoping that they could spot something I had overlooked.

Once again, I make no claims for exemplary behaviour. My response simply reflects what most of us do in the course of normal practice. Of course, ‘normal practice’ is a subjective description. A whole raft of less than conscious assumptions can hide beneath the label ‘normal’. And since a key component of mediation is precisely the unearthing of such unexplored assumptions, we might do likewise with our own assumptions.

There’s a prevailing belief in the mediation world that the conflict belongs to the parties. Mediators are there in a neutral/impartial capacity to help disputants move toward some more desirable future – be that resolution, transformation, or settlement. The standard formulation is something along the lines of the mediator is engaged with the process, but cannot be held responsible for the outcome.

In the instance of the angry neighbours, the mediation ‘failed’. I am using failure in the sense that those involved walked back out into the world still carrying a dispute. For them, the conflict continues to be alive. The question is what status does the conflict now have for the practitioner?

For those of us schooled in reflective practice the conflict now becomes material for professional scrutiny. This was certainly true for me throughout that long drive home. As mediators, we turn our gaze from the conflict itself, to our managing of the conflict. In both a real and metaphoric way, there is a shift from the world of the disputants, to the world of the practitioner.

The stance of ‘reflective practitioner’, is commonly thought to be one of the hallmarks of mediation professionalism. And while I’m in no way disputing this claim, I believe there is also a shadow side. The issue here isn’t failure. And it certainly isn’t about our intention to learn from failure. Reflective practice is part and parcel of professional development. The real issue is where we draw the boundary of our professional engagement.

In taking up a reflective position, a strange bifurcation occurs – the world is suddenly divided into two discrete realities. On the one hand there is the world of the parties, which includes the pain and confusion of an ongoing dispute. On the other, there is the world occupied by the mediator.

Mediators act as third-party interventionists. In this role we ascribe the conflict as belonging to the parties. And in a sense this is clearly so. They bring the conflict into the room. Chances are that prior to the parties arrival, we were blissfully unaware that this specific conflict even existed.

Made aware of the conflict, we proceed to spend time, energy and effort in trying to assist the parties to work with the dispute – whether the outcome is a ‘solution’ to the presenting issue or a shift in the nature of their relationship or both. Whatever our theoretic basis, working as a mediator means engaging in a conflictual world. We empathise. We seek to understand. We imaginatively extend ourselves into the disputants’ reality.

Our behaviour connotes a very powerful belief. In not rejecting their endeavour to negotiate, we hold open the possibility that their situation may not be irredeemable. One of the central features of conflict is its tendency to contract choice-making , so that any sense of manoeuvrability feels both constricted and constricting. Mediators, in consciously holding the tension of differing positions, point towards a potential space for negotiations. In this sense, the two worlds – that of parties and of the mediator – intersect and overlap.

Then the mediation ends. In this particular case, it ended in discord. And at once, the potential space disappears. The parties, still locked in conflict, head back into their world. While the mediator wanders off into a private world of reflection.

The truth, however, is that there aren’t two worlds. The world parties re-enter when they walk out the door is also my world. They are taking conflict, pain, distress back out into a unified world, our world.

This is true in two senses. Firstly, their conflict is part of the external world that all of us share. The hate, distrust, anxiety and fear generated by their dispute are manifest in our collective social reality. We might judge that two warring families living a hundred miles away will leave no impact on our day-to-day lives. But this is a form of imaginative blindness. A single piece of litter discarded on some distant highway may go unnoticed by us, but it is pollution nonetheless. The same is true of conflict and discord. The social landscape is susceptible to the same damage.

If we turn from the exterior world, to the interior, it is true to say that their conflict is equally alive in my inner imagination. Having extended myself to understand the dispute from within the world of each party, a kind of cognitive and emotional bridge has been built. As a mediator, I have come to know their pain from the inside. I have extended an invitation to them to be open, honest – to share their experience. As a result, I am left in no doubt how both sides have suffered and hurt, have felt let down, betrayed, disrespected.

Thus when mediation ends, I am no more ‘free’ of the conflict – either externally or internally – than I am of my ears, or heart. Ignoring the unity that exists beyond the mediation room door shouldn’t be construed as neutrality or impartiality, or even reflective practice. The proper label is disengagement.

Some might argue that what I’m calling ‘disengagement’ is merely the necessary distance for the practice of impartiality. We are not there in order to force parties to agree. We cannot insist on resolution or transformation. We are trained to believe that the conflict belongs to them.

Only I am never impartial towards conflict. If I was, I wouldn’t have chosen to be a mediator. Conflict contains the capacity to do powerful things to our humanity – both in terms of deepening and diminishment. The work of a mediator is finding ways to engage with conflict so that it engenders our humanity rather than negating it.

So when parties leave mediation with their conflict still intact and potentially poisonous, it seems anything but professional to look away. We know too much to pretend otherwise. In these circumstances I expect mediators to continue to bear witness to the reality of what they’ve experienced. If this implies that we will continue to suffer, then we are merely recognising the centrality of compassion in the work we do.

I am not advocating that mediators should adopt sackcloth and ashes for cases that fails to reach resolution. What I am saying is that we cannot ignore what we know. And I believe this is important for two reasons.

In the first instance, pain is an explicit teacher. Having let conflict walk back out into our world, we have a responsibility for the next time – to learn more, deepen our skills and capacities, to be better prepared for subsequent engagements. This is all in the realm of the reflective practitioner, but with the awareness that failure acts as a conscious reminder of our own limitations, both personal and professional. We are responsible for developing our own humanity. It is not only the limitations of our clients that must be taken on board.

At such times, it can be all too easy for mediators to forsake the parties by blaming them for the failure. We have recourse to such notions as they weren’t ready to mediate, they needed the conflict, they are stuck in fault and blame. This is not to say that these statements might not hold some truth, for they might. What also need recognising is that they aren’t merely ways of hypothesising; they also function as means of separation, of ways of partitioning off the pain.

More than anything else, what we (our clients and ourselves) may need at this moment, and in moments still to come, is still to find ourselves being held within a single world. A world that continues to bear witness to the possibility for peace. In this sense, mediators are required to a kind of imaginative optimism that transcends the current situation and points to something that may take months, years, even generations to appear.

This means mediators need to continue the effort of holding conflicting parties in their imaginations, to stay empathic and connected. To turn away, even with the intention of self-learning and development, is to break this imaginative link. In doing so, we abandon the parties to their own insufficient resources.

That we as mediators are still willing to envisage the conflict, to engage with it imaginatively – even when the parties have left the room, is to keep something alive. Not just for those in the dispute, but for all of us who occupy a troubled and troubling world.

Biography


Michael Jacobs has been mediating for the past 23 years across a range of disputes, including family, community, workplace and civil/commercial. He appreciates the fact that even after all this time, he is still quite capable of making mistakes and getting things wrong – it means that he has more to learn.  



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