Stay up to date on everything mediation!

Subscribe to our free newsletter,
"This Week in Mediation"

Sign Up Now

Already subscribed No subscription today
<xTITLE>Shovel 4 - Diminished - Tradition reduced</xTITLE>

Shovel 4 - Diminished - Tradition reduced

by Paul Rajkowski
July 2021 Paul Rajkowski

As the fence grows larger, traditional mediation is further diminished by all the versions in the current culture. Diminishing self-determination is the result. Diminishing this goal is ruinous to a traditional process.

Further diminishing mediation. The parties make a choice in how the mediation is conducted. This happens more often than not. But it’s not their choice. Mediators control the process. The parties control self-determination and the success of the outcome.

The latest form of diminishment is to have counsel make opening statements. Ain’t no tradition here. But it is behind the fence as discussed in Shovel #3.

For various reasons, opening statements are a big deal for the experts. It reminds me of court. In court, each lawyer gets to make an opening statement in front of the judge. That’s it! An ex-judge as mediator. Lawyers presenting opening statements makes everybody feel at home. Except of course for the parties.

Often there are other reasons for a lawyer making opening statements. My client is too nervous, fearful, or I don’t want them to say the wrong thing. Feels like a court doesn’t it? The client will not take the stand for those various reasons. It is court. Evaluations and all. Except that the mediator travels from room to room conducting separate sessions. The separate session is within the fence.

As an aside, where are “conciliatory gestures?” These gestures involve the entire body. They are reactions and/or comments by a party in the presence of the other party. These gestures always occur. They are always present and must be observed.

Traditional mediation really needs a return. Being like the court is just not mediation nor is it appropriate. Diminished, too far, and we will not have traditional mediation.

The parties are the main actors and they must be front and center. So no need for lawyer opening statements. What’s important. Parties making their own opening statements expressing their needs for ending the conflict. That’s tradition. It’s important to remember the parties do the talking and everybody else listens.

Tear down that fence those of you inside the current mediation culture. And those of you outside the fence make efforts to control the mediation as traditional.

A mediator knows how to reduce fear in either party. By building up their courage and getting the parties to discuss their issues. The mediator understands empathy and compassion. It has a role in keeping the parties positive and moving toward a resolution.

Each party listens and hears what the other is saying about their own need. The mediator is there to keep them advancing toward a conclusion. When the process is stalled, the mediator is motivated to ask an open-ended question. Getting the parties to go deeper in revealing what they need and why.

A mediator is neutral and it’s sometimes hard to remember this. Wanting to give out the answer is an undisciplined feeling but inside the fence. There is no room for anything but a neutral and unbiased mediator. Anything else makes the mediator biased and non-neutral.

Thousands of years ago Lao Tse wrote about good Emperors and what made them good. Good Emperors set the rules and the citizens live without the Emperor interfering. I can see mediator written all over this. The mediator sets the ground rules. The parties agree and the discussion begins. Several thousand years old and it still works. If we want it too.

Yet, in the current culture. Mediators are free to offer reasons why and how the conflict should end. One could call that the “Emperor interfering in the process.” Most times it ends in compromise. Why is the mediator so important to them inside the culture? Yes, we want the mediator to be good. Currently, the wrong reasons are being used. Legal knowledge and subject knowledge (being a foolish Emperor) etc. are now common. The result, more knowledge and less responsibility toward the parties. Yes, I do believe the mediator is believing that the success of the mediation rest on their shoulders.

The success of the mediation rests with the parties. The mediator’s responsibility rests in helping the parties reach that success.

On my shovel also holds “options.” By this technique, mediators keep visual awareness in front of both parties. A flip chart keeps a record of each option. Yeah, many mediators don’t use them even though they are effective. They're not used because there is no joint session. Still, the chart is a way to end diminishing traditional mediation.

It is a tremendous help in supporting the free flow of thought between the parties. The result is usually a combination of options that proposed are a step nearer to the agreement.

Think about it, if you will. A record of options is helpful, they become reference points. The parties recall what they were proposing and how it might fit or some part of it with the latest proposal.

Here is traditional mediation with the mediator as a Recorder of information. (In another article, I listed the roles of a mediator). With time and a proficient traditional mediator, success is achieved……I’ll rest a bit and dig more later.

Biography


Paul Rajkowski was born and raised in the Chicago area. After serving in the USAF, he graduated from St. Mary’s University of MN in 1967. Paul went to work in the printing industry as a sales representative in the printing ink division of a national company, eventually earning a sales manager position. Several years later, Paul bought his own printing company. In 1986, Paul had an opportunity to change industries and moved south to Tennessee to manage the production and sales of framed mirrors to the furniture industry.

During a personal court process, Paul learned about mediation. Intrigued, he took several courses in mediation, becoming a Rule 31 Tennessee listed mediator and mediation trainer. After ten years of training and mediating, also judging mediation competitions at university, Paul retired so that he and his wife can travel. Mediations still on his mind, though, and he is on a mission to keep alive the original concept of mediation as he understands it. In that quest, he has written several articles and intends to keep writing.



Email Author
Additional articles by Paul Rajkowski