After writing the Obituary of traditional mediation, I thought it might be possible, so to speak, to raise the dead. It would take effort, but it would be worth the effort to get traditional mediation restored as the method for facilitating conflict. I believe I have something to begin the process of digging - a good size shovel creating invisibility.
Several years ago, a blog, CAOTICA in the UK, published my article, “The Invisible Mediator - Participant Self-Determination in Mediation.” Some parts of it appear here.
The first shovel full is to realize efforts must be made to relearn the purpose of traditional mediation or its value will be lost. Today, there are so many lawyers and retired judges in mediation. Holding a traditional mediation with them is next to impossible. Why?
Researchers, finding that when one is an expert in something the fall back to a problem is to use that expertise to attempt to solve the problem. Lawyers are trained in - advocating, evaluating, talking one on one with their client, and the law itself. Judges learn to evaluate and interpret the law. This training provides the basis for separate sessions, which is not traditional mediation. As I say, the expertise of lawyers and judges have changed mediation, but they themselves have to change.
In the mid eighties, Folsberg and Taylor wrote in “Mediation” that lawyers had to learn the skill of a mediator in mediation. They had to adjust to learning mediation and I’ll add, to invisibility.
When I promote traditional mediation, others say “One size does not fit all.” So I say, “One size fits the party.” There are two parties, so one size fits each party.
Mediation is based on a party’s need. What need is there to prefer a choice of traditional mediation or not?
So what would a lawyer and an ex-judge have to relearn ( advanced course or home schooled) about their performance that would contribute to invisible? Invisible means less talking and more listening. Start with the end goal of the parties saying “We did it ourselves.” Getting there is committing to traditional mediation.
First, the mediator sets the stage for the parties to begin the discussion. Parties have to talk to each other, therefore, joint session is necessary. Here the parties have the responsibility to end their conflict, it’s not their counsel’s or the mediator’s responsibility, and going to separate session does not make the mediator invisible. Quite the opposite.
Second, traditional mediators learn to think about ways of having the parties talking to each other. Developing listening skills and using what is learned about psychological tendencies of people in conflict, the mediator learns to ask questions - in the Milton Method (open ended and vague) as used in NLP(neurolinguistic programing). The mediator learns to use words that encourage self-determination and identify unmet needs, as presented in “Nonviolent Communication” by Marshall Rosenberg. This training keeps the parties in discussion and the mediator invisible.
Additionally, learning about emotional and ethical intelligence, using Marshall Goldsmith and Bruce Weinstein, and others, keeps the mediator alert to the discussion. There are no “what if’s,” “how about’s,” but the mediator is asking or saying when necessary, “Tell us more,” or “How does that happen?” “What’s important to you about that?” and other pertinent open ended questions that will move the discussion forward. We want the parties to leave feeling that they did something worthwhile, and feeling good about it. Remember the end goal is always hearing from the parties, “We did it ourselves.”
Will my first shovel be a step toward resurrection? I guess it depends on you, the reader and mediation practitioner. Maybe the second shovel will loosen up more dirt for bringing traditional mediation back?……