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As mediators we often use ground rules. Some of us may simply ask the participants in a mediation to agree to a list of 3 or 4 of them. Not interrupting each other and mutual respect often come up. Others offer up one or two of their own and ask the participants if they would like to add any. Personally, I often ask what the participants need to have a useful dialogue, and leave it at that. Other mediators prefer the term "guidelines" as a less preachy term.
For something that is such a part of our process, I’ve seen little discussion of the role ground rules play, and for whom. I’ve been moved to think about this question, because I think it helps me be a better mediator if I question my assumptions from time to time. I hope you will find this article thought provoking, and that you’ll pass on your thoughts about it.
A Part Of Life
I begin by admitting to myself that ground rules are, in one way, just another unspoken part of my life. I normally expect to be treated with a minimum of what I consider to be courtesy, and attempt to treat others according to those guidelines as well. Most of the time I don’t even think about it. If someone confronts me with what I consider a private issue in a public place I may ask them to hold the discussion until we can go somewhere else. That , to me, is me asking them to abide by a ground rule. Any of you could come up with a large number of such examples, including others with which you expect to abide without asking. Then again, I take for granted confidentiality as a ground rule in mediations (this is aside from legal or administrative requirements). It is my belief that this opens the possibility for parties to have the wide ranging and honest dialogue that will be most conducive to reconciliation. It is also a personal moral imperative.
At other levels, we may even negotiate some ground rules without verbal exchange. If two of us reach a doorway at the same time and stop just short of bumping into each other, I may extend my arm forward in a silent invitation for you to go first. Seems to me that could be a way of my offering a ground rule of the moment, and your walking through the door first an acceptance. When Yasser Arafat and Ehud Barak encountered the same situation during their recent negotiations in Washington there ensued a complex dance in which one basically pushed the other through the door. In this case, the difficulty in agreeing to this ground rule may have reflected the difficulties of their larger negotiations. This simple demonstrations indicates to me that what we often take for granted has much to teach us.
Upon Further Reflection
My current thinking is that, in terms of my own consciousness, ground rules or guidelines operate on at least four levels. The first is a reflection of my personal sense of safety, an unconscious benchmark of what behaviors by others, or aspects of an environment, might trigger my "fight or flight" response; and my instinctive response to conflict for which I don’t know how to respond is avoidance. If I felt in some sense unsafe during a mediation I would say so and respond by saying what I noticed and either ending the mediation, if I felt too unsafe or threatened, or use this as a springboard to discussing how the situation could be changed to provide an atmosphere fruitful for resolving the disputants’ conflict. This assumes, of course, that my sense of unease is shared by at least one of the disputants. If not, I would surely look into myself for what was pushing my buttons so severely, but the disputants’.
Next comes my spiritual beliefs, though beliefs is a clumsy word for me here. It’s how I want the world around me to feel both emotionally and energetically. From this perspective I derive how I am in the world in my relationships to others. These guidelines are inner directed, and something in constant flux. I am learning on a daily basis about myself and the alignment, or lack thereof, of what works for me in the moment with what I believe is the right thing to do. I try to adjust my behavior with what is in alignment with my spiritual values, and I think this makes me a more effective mediator.
The third is my negotiation with others about how we will interact, which I see as a function of the interaction between our individual values and the social mores in which we are immersed. This may present itself in a mediation in the form of one disputant disagreeing with how things are going. Perhaps they complain they are not being heard. This is an opportunity for the parties, disputants and mediator(s) included, to negotiate how to proceed in the moment. As the mediator I have the opportunity to model an effective response, and to invite the participants to consider how they respond, and to make informed choices.
The fourth level has to do with what I as a mediator believe will work in a given mediation, that is, what sort of approach to ground rules will best support the participants in their dialogue. There may be situations where the prior relationship seems to me to indicate a need for firm ground rules. Is that a reflection of my needs as a mediator, or of the disputants need for safety, or a mixture of these. I encourage disputants in mediations to be clear about such issues, because it matters in how a dialogue goes. If I insist on ground rules because I am feeling nervous about how the mediation might go, and I don’t take responsibility for my feelings might I not do the disputants a disservice? Isn’t this one of the potential outcomes of mediation that would be beneficial to the parties, that they take responsibility for their own reactions and not blindly blame them on the other party?
Why Worry About All This?
What got me thinking about this issue was the training I received through the U.S. Postal Service’s REDRESS program. In that program mediators are required to use the mediation model (the Transformative Model) as presented in The Promise of Mediation by Folger and Bush. One of the foundations of that model is that mediation serves the purpose of offering participants the opportunity to grow in two moral dimension, that of empowerment and that of recognition. The empowerment dimension, as the authors define it, involves "...realizing and strengthening one’s inherent human capacity for dealing with difficulties of all kinds by engaging in conscious and deliberate reflection, choice, and action." (p. 81) Later they speak, among other things, of people becoming clearer about their values, needs, goals and options in order to make such conscious decisions. The mediator is charged with looking for opportunities to slow down the action in a mediation and ask the parties to clarify these questions and make choices about them.
After awhile it struck me that the setting of ground rules in a mediation could be one such opportunity. Rather than telling the participants what the ground rules would be, why not ask them what they need for the dialogue to be productive? I looked upon this as a way of getting the Transformative Model mediation off on the right foot, infusing the very beginning with the spirit of the process. What I’ve found has intrigued me. Only once have any participants asked for any ground rules, and the other side agreed and presented one of their own. It certainly did not lead to any discussion by itself, but did seem to help the participants feel they were being heard. The only other time any one has mentioned any ground rules was when one participant said they thought the ground rule should be for people to be treated fairly on the shop floor. This led to the participants getting right into the discussion of their issues.
After some thought I decided that people were probably relying on their assumptions about how they would treat each other, probably thinking that ground rules were not necessary. The truth in this is that often people try to present themselves in the best light in front of the mediator, not wanting to appear to be unreasonable. For this reason, in many situations ground rules may be unnecessary. I also realized that in the past I’ve felt that I was patronizing participants by telling them the expected ground rules, and that this new method relieved me of that burden.
Another purpose that leaving the use of ground rules open to discussion by the participants may served can be illustrated through the story I cited above of Messrs. Barak and Arafat pushing each other through the door. That is, the way participants in a mediation discuss any issue may well reflect the way they have been interacting that brought them to the mediation in the first place. It is an opportunity early in the process to help them look at their way of handling conflict with each other. This might assist them in finding a more effective process.
Finally, I think that my judgement on the use of ground rules is bound up with the prospects in any given case for developmental mediation. By this I mean that I think there is a continuum along which mediations fall. At one extreme are cases where it is likely that there will be in essence an assisted negotiation in which the participants move a little from their demands and find some compromise that reflects their underlying interests. It is probably a one shot deal, and the parties leave with a settlement and not much else.
At the other extreme the mediator and the parties engage in an active learning situation. Not only do the parties find a resolution to the particular issues, but develop new insights into themselves and each other, improve their relationship and learn new ways of working together for the future. In my experience, most mediations fall rather more toward the middle of this continuum. There is a dance between what parties initially want from a mediation, and what they discover is possible in the course of the process. In this sense, I find most of my mediations result in a mixture of problem solving and exploration of change by the participants.
What does this have to do with ground rules? Simply that I seek to avoid becoming rigid in my use of them. Every mediation is different, as are the needs and openness to change of each participant. I am sometimes more open and quick to respond in the moment than at others. For this reason I try to avoid having one policy about ground rules, rather seeing them as much a part of the process as anything else I do.
I leave you with some questions on ground rules that I hope you will find useful.
1) What is there about ground rules that reflect my unconscious beliefs, feelings and experiences?
2) What is there about ground rules that are useful to the parties to a dispute?
3) How can I approach ground rules in this mediation that will promote an environment conducive to resolution for the parties involved?
4) Is there some edge for me here? If I think about either not using ground rules at all, or about
telling the participants what the ground rules will be, what feelings does this arouse in me? What
does this tell me about myself that it would be useful to learn in becoming a more artful mediator?
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