You are the Technique-Notes of a New Mediator

My first day of mediation training in the Spring of 2004, progressed in somewhat the same fashion as my first year of law school. I remembered struggling painfully with the theoretical bases of jurisdiction in Pennoyer v. Neff on day one of Civil Procedure only to be told the following week that Pennoyer was no longer the law. “Why,” I remember thinking, “did we even bother with Pennoyer when this Buckeye case about an exploding boiler now seems to be the law. Or is it just another chimera as well?”

I shouldn’t have been surprised that my first mediation class would bear an eerie similarity to those first few weeks of law school. I should have realized I was about to be trained to stop “thinking like a lawyer.” It was easy for me to be evaluative – after all, I had twenty-five years of legal practice in my back-pack. I learned Dr. Cialdini’s “Principles of Ethical Influence” – Reciprocation; Scarcity (the rule of the rare); Authority; Commitment; Empathy; and, Consensus. These power principles were followed by questions typically asked by law professors – what about neutrality; what about choice; what about listening to the parties; what about self-determination?

The facilitative style seemed to be the answer to these questions. A mediator could create an atmosphere of hope and safety, after which the parties would ideally locate areas of agreement while sharpening the precise contours of the actual dispute. Here, the mediator was follower or helper on the path to resolution, like the protective figures who appear early in the hero’s journey to enlightenment. Joseph Campbell taught us that these often supernatural figures take a wide variety of forms -- wizard, crone, dwarf, fairy godmother. Some actually accompany the hero on his journey, assisting in a series of tests and generally serving as a loyal companion. So does the facilitative mediation “helper” provide support, reflection, empathy and courage to stay the course of the negotiation, no matter how painful.

But, says the transformative crowd, these “facilitators” do not empower the parties. Facilitative mediators, they say, too often present themselves as wizards who intrude upon the parties’ conflict with their own agenda – usually “resolution be damned, let’s settle this thing!” Transformative mediation is a bona fide theory, say its adherents, not just another arrow in the mediator’s quiver. The transformative mediator lets the session wheel out of control if that is where it is eager to go. The parties are permitted to be combative, shout insults and engage in ad hominum attacks. Conflict is not seen as a state to be avoided or suppressed. Like a loving mother following the course of her child’s flu, mediators should provide the parties with opportunities to rest; lots of fluids and a metaphoric place to lay their heads as the conflict runs its natural course.

After a year in practice, I continue to veer wildly among these options. I try to expand the pie; gamely reach for consensus; urge the parties to proceed with respect. I make a concerted effort not to suppress the expression of rage, bitterness or resentment.

When I bring my questions and concerns to the few master mediators I know, they tell me the same thing. “You are the technique,” they say. “Just stay in the process. Don’t guess. Ask questions. Listen. Don’t give up before the miracle of mediation happens.”

Just last week, I had another in a series of mediations I am coming to see as the unintended consequence of the still rising L.A. real estate market – the collapse of caring family relationships in the presence of an unexpected financial windfall. The basic story is the same. One or more members of a large, often immigrant family purchases a small piece of property in a run-down neighborhood. For years, even decades, this property houses newly married couples saving for their own home; elderly parents no longer able to care for themselves; and, cousins, aunts and uncles who have just arrived on American soil.

When I first see them, the families are trudging into a downtown Superior Court room with their respective attorneys, avoiding cherished children and beloved parents, glaring at brothers and sisters across the courtroom divide; bursting into tears and running for the door. They are wounded, angry, incomprehensibly demoralized. All too often, their attorneys want to leave them outside the conference room, silence them, control the high emotions they bring to the scene – what must be one of their greatest human failures.

I let the lawyers do what they want now – to leave the family outside. There are two mediations to be conducted – one in which the lawyers’ outraged sense of injustice is expressed; re-considered; and, re-channeled toward the resolution of the whole rather than in victory to the half. Although this work is often both evaluative and facilitative, the attorneys experience transformation as well – they too long for the tools to resolve these matters without further procedural and strategic warfare.

Having side-lined their clients, they are unable to convince them to accept the “deal” struck behind closed doors. Then they come back to me.

“Can you convince my client to see reason ?” they ask.

“Reason?” I reply. “Maybe. I can talk to them about their choices; their family; their losses; their anger.”

Last week, a mother in her fifties, Mrs. Bouchet came in. Her adult children were seeking to quiet title to the family home in their names. The “children” said their mother long ago authorized one of her daughters to sign Mrs. Bouchet’s name on a grant deed. That was when she’d taken flight from an abusive husband and left her grown children and the family home behind.

After everyone but Mrs. Bouchet accepted the “deal” struck without her, I sat quietly in the jury room while she cried. We talked quietly together about loss and fear. About love and family. About the material and the spiritual. We talked about the house as a metaphor for the damage the family had suffered; a repository for the children’s feelings of victimization and abandonment. Finally, the tears burst into wails, “but they stole my house; they stole my house.”

“I know they did,” I responded. “I know they did,” passing a Kleenex across the scratched wooden table.

“My house, my house myhousemyhousemyhouse,” she choked, her chest heaving with the loss.

“I know I know IknowIknowIknowIknow,” I said in cadence with her. It was no longer language. It had become music, like the call and response of the Southern Baptist Church. Call of grief; sound of comfort; call of anguish; sound of understanding; call of loss, sound of return -- call, response, call response callresponsecallresponse.

After her sobs subsided, Mrs. Bouchet dabbed her wet face with the Kleenex.

“I’ll give them the house,” she finally said, “But please tell my children I’m doing it only so they will be safe.”

Safety. It had been the one comfort this mother had never been able to provide to her children. Here in the courthouse where we all expect reason, the irrational bud of hope was once again pushing itself up through the cracked earth.

“Yes,” I say. “I will tell your daughter that you want her to be safe. That you’re settling the lawsuit so she can be safe. It is an act of great generosity. With this sacrifice, you begin to bring peace to your family.”

Mrs. Bouchet smiled as I shake her hand and that of her grateful attorney. Grateful this troubling case is settled. Grateful he was not required to have this difficult conversation. Grateful his client seemed comforted rather than “beaten” by the mediator in an effort to “see reason.”

As I left the courthouse, I gave thanks, yet again, for the blessings brought to me by this odd and varied new occupation. One that requires everything I have to give and all I must learn to receive. One that asks of me only to stick around around until the miracle happens.

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Victoria Pynchon,   Los Angeles CA	vpynchon@settlenow.com      04/24/06
Building a Practice for Nancy Who Didn't Leave Her Email Address
Dear Nancy, Welcome to the great wide wild world of mediation. There is, of course, no one-size- fits all advice about building a practice, though I think it best for everyone to “market their backyard,” i.e., sell their services to those they know best in the field they know best. Other than that, here is my “business plan.” 1. Be conscious 2. Be teachable 3. Be of service 4. Always say “yes” to a mediation request 5. Be the exception to the rule To grow the business, you need to first plant its seeds. I did this by 1. giving it a name 2. buying it business cards; and, 3. building it a website (yahoo has a free site-builder that a 12-year old or someone like me over 50 can use without instruction) Nurturing the business, I 1. joined all professional and business organizations in my market 2. took classes that intrigued me 3. volunteered my mediation services to practice my skills 4. talked incessantly about mediation WHENEVER ASKED (soft, not hard, sell) 5. began writing about my new profession and sending my articles to local journals 6. asked people who were already mediating: a. for tips on starting the business; b. if I could observe some of their mediations; and, c. often offered to be of service to them in some way if I could 7. began formally speaking about mediation and negotiation skills, free, as soon as I felt prepared to pass along what I had learned to others 8. attended conferences and workshops 9. took people in my market out to lunch; out for coffee, etc. 10. became engaged in community activities again, in my case, in local peace organizations; and, 11. offered to be of service to the organizations I became a member of – the lowliest little services I could provide – the first being just to pick people up at the airport who were speaking at an annual mediation conference & delivering them to the conference 12. I made TOO MANY PLANS, so that when some of them didn’t pan out it was FINE with me; I had five other plates in the air; this allowed me not to get discouraged if any particular plan didn’t go well Building my network, 1. I paid attention to what people were interested in and offered to hook them up with others who I thought might be able to satisfy their interests 2. as more people introduced me to other people who might be of assistance to me, I connected them up with other people who might be of assistance to them Financing the whole thing, 1. –I lived on my savings 2. I bartered A LOT of my services in exchange for others, i.e., a. I offered to give my web designer the email addresses of people in the mediation field, all of whom could use his good but low priced web services – as a result, he’s STILL providing me web-master services free of charge b. I offered to let other mediators who were in my market participate in my marketing ventures and to share my web site without offering anything in return & they returned my favor a hundred-fold As to reading, I’d pick up ANYTHING Ken Cloke has written (I believe you can buy his books on his web site, www.kencloke.com), Keeping a journal of your mediations is tremendously helpful. You’ll be amazed at the insights you’ll have about what you did that was RIGHT ON THE MONEY and what you might have done better (or at all). Journal keeping also supplies you with material for writing articles when you’re ready to do that. Surround yourself with people who say “you CAN do it; of course you can do it!!!” Smile nicely at people (the vast majority) who tell you that you’ll never be able to do it because (pick one) -- the field is full; you’re not a lawyer and the lawyers have taken over; you’re too young, old, over-educated, under-educated, etc., etc., etc. Treat them kindly. They’re afraid of life and it frightens them to see you believe in yourself & your own power enough to build a new business. Nurture your spiritual life, whatever it is –exercise, nature, tarot cards, crystals, even the good ol' top three American religions. Practice peace-making in all your affairs. Best of luck to you!! Vickie Pynchon Add New Comment

Dan Dana	dan@mediationworks.com      04/02/06
An organic paradigm
This personal and well-written article has been selected as the Article of the Month in the April 2006 issue of the MTI Monthly Newsletter, published by the Mediation Training Institute International -- http://www.mediationworks.com/mti/friends.htm Its central theme reflects the organic paradigm (as distinct from the mechanistic paradigm) in which the mediator recognizes that the solution to the problem is internal to the client/party, not in the external mediator/expert. For a seminar topic outline that contains this concept, visit http://www.mediationworks.com/mti/seminarcontent.htm Add New Comment

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