In getting ready to continue digging up the return of Traditional Mediation, I read Rachel Gupta’s article on this site and I am grateful to her for writing it. To me it is a good reminder that this is the thinking of the current mediation culture. For it also showed me that my small shovel was not enough and I would need something bigger. Brought in the backhoe and dug up this heavy gem -
ONE SIZE DOES NOT FIT ALL
Today’s mediation culture erected this protective fence around the process so that mediators could protect themselves with “styles” that would make them look good and hopefully be good. It gave writers latitude to dissect and suggest all the ways mediators could manage a mediation. Thus, we have the usual suspects; evaluative, transformative, narrative, specialists covering law, industries, and separate session activists. Experts will be experts as the saying goes.
So where is self-determination? After an expert in the law, industry, and what else is found the parties will be impressed, and will listen to that experienced expert. Isn’t this reversed? Mediators listen to the parties. Mediators let the parties speak to each other looking for options that will bring their conflict to an end.
A favorite story that I want to continue to remember relates to mediators and mediation, and goes back to approximately 500 B.C.
Lao Tse founder of the TAO, is retired and chronicling the Ming Dynasty. He is asked by the Emperor to sit with two Generals in conflict about each other’s attack plan on a fortified city to be accepted by all the armies of the Ming Dynasty. The Emperor said their arguments were giving him a headache. Lao Tse, knowing nothing about army battle tactics, meets and listens to their arguments. I don’t know how he handled it, there is no record of the discussion except that at the end of the day one General said, “ This is good. We have a battle plan and we did it ourselves!” I like to think that Lao Tse said something like, “Now that you have heard each other. What are the similarities in these plans?” Open ended question just like traditional mediation. Today, we say something about “options without judgements” and proceed from there.
Right now the current culture wants a progressive approach to the mediation process and the qualifications of the mediator. The hope is that the mediator will do a great job! Being fully qualified to evaluate and suggest a path to a negotiated settlement or a compromise.
Mediation is not about the mediator, yet the fence gets higher with all articles about the skills that a mediator must have to be effective. Ms Gupta’s is a case in point. Well written and covering qualifications of the mediator inside the fence of One Size Does Not Fit All.
It wasn’t always so. In the ’80’s Jay Folberg and AlisonTaylor in their book, Mediation, wrote that lawyers had to change their learned approach to conflict and adjust to mediation protocols in a joint session.
Yes, a mediator has to be knowledgable as the argument goes, but about what?
Start with the “summary.” Many complaints are written about summaries. At a Bar luncheon, I attended, the speaker, a retired judge, complained that most summaries made him biased. The lack of preparation was evident in many of them. He felt he had to wing it, and be inside the fence.
Why not take charge? The chosen mediator calls each lawyer separately and discusses their client and the conflict. Prepared mediator questions give much better responses and give the mediator a clearer picture of the conflict. Experts being experts. But the mistake some mediators make is saying, at the mediation session, “I know what this case is about, so let’s get started in getting to an answer.” They begin looking for solutions before the parties have had an opportunity to tell their story. A current culture status give away.
Next, be a listener, an observer of the party, be aware of any imbalances between the the parties, is there a sense of fear or lack of courage in either or both parties. Know in advance about narcissistic people and many other sources of information that will make the mediator knowledgable and informed in working with people (the parties). Mediators are not there to be psychologists or therapists, but they have to have that type knowledge to move the parties along in the process. Know about decision making and leadership. With open ended questions and awareness of the party’s current attitude and feeling, the mediator works with both parties. The lawyers know the law and subjects know their need.
Lastly, remember that the parties are looking to meet their need. Not “interested in or want to,” which potentially leads to compromise. It is meeting their “needs” this is most important and the reason they are in joint session. There is usually less compromise in meeting a need. Mediators work at keeping the dialogue positive and forward thinking and working toward each parties’need.
Remember, the parties speak for themselves. Attorneys do not speak for their clients, unless it is a PI (Personal Injury) type case. The culture still calls PI cases mediation, but we know different. We could think of a mediation session as a meeting of the Family. The Dons talk amongst themselves and their Advisors sit at the side of the Don and not at the table. When asked, they provide advice. For mediation, the caucus comes in handy.
Also, this is why reframing is so important. It’s not changing the subject as some would say, rather, mediators are putting the comment made into a more positive frame versus a negative one while showing the intent of the speaker.
It’s time to rest and return the backhoe and until number four…..think Traditional Mediation…..many won’t be able to or want to, but try…restoring Traditional Mediation brings down the fence of One Size Does Not Fit All and what that means….