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Are Mediators Damage Control Experts?: A Case Study of Community Mediation

by Jonathan W. Reitman
May 2008 Jonathan W.  Reitman
Every experienced mediator I know has developed an individual style. The mediator’s opening statement, our use of caucuses (or not), the degree of evaluation with which we are comfortable, and effective techniques for moving through impasse—all of these are part of the mediator’s toolbox and they reflect our chosen (or default) style.

It’s not that we don’t ever vary our style, depending on the needs of the parties in a particular case. In fact, skillful mediators may use what appear to be contradictory styles in different cases. We’re a pragmatic bunch, and for many of us the “whatever works” rule best captures the elements of our style.

Every once in a while, however, a conflict comes along which challenges all aspects of your style, your assumptions about what mediation is, how it should be structured, and your role in it. I had such a case not long ago.

The matter involved the termination of a much-beloved Childrens’ Librarian at a community library. She had been employed for 23 years, and had been widely recognized in her community for “turning on” a generation of young people to the joys of reading. For various reasons, she was terminated by the Library Director, and her discharge was affirmed by the Library’s Board of Directors.

A community tumult ensued—daily letters to the editor of the local paper, heated conversations in coffee shops and on Main Street, threats to eliminate library funding from the surrounding communities. This was a clearly a library and a community in crisis.

Because the furor was escalating, the Library’s Corporators (the legal entity which governed the Library) met and, after much debate, voted to pursue “mediation” by a “neutral mediator” as a way to resolve the conflict. Sounds good, yes? But the motion which endorsed “mediation” also directed the mediation to pursue “fact finding” about personnel policies generally at the Library, and to “make decisions” about whether the discharged employee should get her job back. Moreover, the governing body appointed four Corporators and four members of the Board of Trustees to act as a Mediation Team which would hire the neutral mediator and work with him.

It didn’t sound like any mediation model I’d ever learned or even heard of!

The “Mediation Team” hired me as the neutral mediator. In our first discussion we tried to define the issues which were to be mediated, given the broad charge of the Corporators’ motion. We also discussed what they saw as their role and my role in this mediation process. Some of them felt that all 9 of us should convene a “mediation” to give the principals in the dispute (the employee and Director) an opportunity to express their views directly to the Mediation Team. These people also felt the mediation should allow anyone from the community who deemed themselves a “stakeholder” to speak directly with the Mediation Team.

Now, I am as flexible as the next mediator, but I foresaw that these visions of mediation could consume enormous amounts of time, deepen already existing divisions, and not really conclude the mediation process with a solution that would be broadly acceptable, and promote some healing in the community.

It was time to get creative.

The Mediation Team and I agreed to hold a community “listening session” in which anyone from the community who wanted to was encouraged to share whatever they felt it was important for the Mediation Team and the neutral mediator to know as we undertook this mediation process. The 75 people who attended (and those who couldn’t make it but who watched the repeated showings on the community TV cable station) were also encouraged to share their thoughts via email with me. While I had some trepidation about giving out my email in such a public forum, that mode of communication proved very useful, and drew out comments from some who were nervous about sharing their ideas publicly on such a controversial issue.

The Mediation Team asked me to begin by conducting “assessment interviews” with the obvious stakeholders: the principals in the dispute, current and former members of the Board of Trustees, current and former employees, and anyone from the community who wanted to speak directly with me. Those interviews were held with a modified promise of confidentiality: I would not attribute a particular statement to any one individual, but I would use the information people provided to help the Mediation Team begin to shape some recommendations which the parties might find acceptable.

Was I straying from any recognizable model of mediation? Or was I trying to balance efficiency with the need to provide self-identified stakeholders an opportunity to be heard? As I said at the listening session, “We’re trying to make this as interactive a process as possible while still keeping it manageable.”

With guidance from the Mediation Team, I also met extensively and individually with the two principals, and conducted a joint session with them both. That joint session was a typical “mediation,” which included presentations by both sides, and private caucuses with each in which various options were explored. It was atypical in the sense that both parties understood that the mediator would convey their respective positions and interests to the Mediation Team. In the end, they were unable to reach agreement, but the session provided the chance for them to have a long overdue conversation with one another about the background of the dispute.

Equally important, I left those individual and joint sessions with a sense of what each of the principals would like to see as a resolution, and what each might find minimally acceptable. That was critical information which I shared with the Mediation Team. When integrated with the comments they were hearing directly from the public (which they shared with one another), it informed their views of resolution.

They engaged in vigorous debate with one another and listened carefully to each others’ ideas. At times I met with the four corporators and the four trustees in private caucuses, and carried proposals back and forth. This was ground on which I felt quite comfortable. In a sense, the two groups of four became the “parties.” They were the ones who engaged in a “facilitated negotiation,” which is one definition of mediation.

Slowly, piece by piece, over a series of nine meetings consuming almost 30 hours, the Mediation Team began to assemble a comprehensive set of recommendations, which addressed the immediate personnel issue, but also recommended actions specifically designed to restore the trust of the surrounding communities in the Library.

After sharing the intended recommendations privately with the principals and the Board of Trustees (which adopted them on a split vote), the Mediation Team publicly released its report to the local newspapers, in preparation for a public corporators meeting, which was the final step required for final resolution.

The result of the mediation was now available for community debate and was published on the newspaper’s website. When he saw the article describing the process and the result, a long time friend and fellow mediator from another state immediately emailed me with his concern:

“We all know that the media has a history of misunderstanding the mediation process,” he wrote. “This article describes the mediation process as one led by a committee formed to evaluate and recommend an outcome as determined by the Committee. My main concern is that this report conveys an inaccurate picture about what mediation is.”

Was my friend right? Did the process which evolved in this case “convey an inaccurate picture about what mediation is?”

It certainly wasn’t like any classical mediation model I had ever been taught. It required me to deviate from my usual style, in which I like to fly under the radar, out of the glare of public debate and opinion. It forced my creative energy to the edge of my comfort zone, and beyond. During much of the process, I was guided by my intuitive sense of what might be the next right action, and by the collective wisdom of my fellow mediators.

In an editorial a few days after the Corporators adopted the Mediation Team’s final recommendations, a local newspaper opined:

“Mediators aren't enlisted to solve problems with ready solutions. They're damage-control experts who strive to mitigate impasses before the weight of conflict obscures the issues at the heart of the dispute and crush all involved parties.

”In mediation, fairness does not necessarily equate to justice. The outcome rarely satisfies anyone completely. In most cases, the most realistic goal of mediation is to defuse disagreement to a point where the disputants can get on with their lives. “[Here] the negotiated settlement represents a good-faith effort to disentangle the library from the web of controversy that has gripped it since September 2007 and to move forward.”

I never thought of myself as a “damage control expert.” That’s not a phrase I’ve ever used in the ADR law school courses or 40-hour mediation courses I have taught over the years. And yet, if I can prevent parties from being “crushed by the weight of their conflict,” perhaps a damage control expert is precisely what I am.

I can understand how my friends and fellow mediators might feel I violated the purity of our model in several ways in this case. In all honesty, I wasn’t always sure I was right.

But the prime directive for mediators, like physicians, is “Do no Harm.” Here, by designing an organic process with my fellow mediators, which seemed to meet the genuine needs of the community, I think we moved beyond this minimal standard, to provide some much-needed healing and relief to a community institution in crisis.

Biography


Jonathan W.  Reitman is a practicing attorney since 1978; full time mediator, facilitator and arbitrator since 1990. Practice concentrates on mediation, training, conflict resolution and consulting. Substantial experience (1000+cases) in the mediation and arbitration of a variety of complex civil disputes, including business, commercial and insurance matters; employment, labor relations and workers' compensation; environmental and land use; boundary and property disputes; construction project matters; family law, and public policy matters involving state and federal agencies. Extensive facilitation of multi-party stakeholder groups on public policy issues (environment, telecommunications, higher education, transportation, workforce development), involving as many as 60 parties. Has served as Court-appointed mediator, referee or Guardian ad Litem in more than 200 cases.

Frequent lecturer and trainer on ADR, including presentations at national and regional conferences; Adjunct Faculty, University of Maine School of Law since 1996; has conducted multi-ethnic workshops on Conflict Transformation in Bosnia and Republika Srpska; has trained participants from 15 different countries in England and Italy. Trained Arabs and Jews in Negotiation, Mediation and Conflict Management, Israel College, Tel Aviv, Israel, 2001-2006.

Facilitator of multi-day strategic planning retreats for statewide university systems, law firms, a national environmental coalitions, a national conference on "Reinventing Justice," and a national advocacy organization on end of life issues. Has designed and facilitated community meetings with 250-300 attending on highly contentious ecopnomic development, land use, community services and transportation issues. Sample facilitation list available on request.

Co-chair of 2000 Annual Conference and Board member, New England Chapter ofAssociation for Conflict Resolution (ACR); former chair and newsletter editor, International Sector of Society for Professionals in Dispute Resolution (SPIDR). Membership on mediation panels including American Arbitration Association Labor, Commercial Panels; CADRES Land Use, Civil Litigation and Domestic Relations panels; General Services Administration Panel of Mediators for EEO disputes in federal agencies; United States Postal Service REDRESS Panel of Mediators; National Employment Mediation Services (NEMS); National Roster of Environmental Conflict Resolution and Consensus Building Professionals, U.S. Institute for Environmental Conflict Resolution.



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