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<xTITLE>SHOVEL 5 - Whose Fear is it Anyway</xTITLE>

SHOVEL 5 - Whose Fear is it Anyway

by Paul Rajkowski
September 2021 Paul Rajkowski

Somewhere along the mediation trail, process change appeared.  This change became a big drift from traditional mediation and led to the shuttle system.  Traditional joint mediation faded and died. Efforts to revive it are on going. The dirt is heavy (resistance).  This resistance seems to like the idea that by offering the parties an option of type of mediation they prefer will make the process less fearful.  And for who?

The new culture replaced the joint session with the traveling road show of separate sessions. Expertise in everything else, law and subject knowledge, is more important than expertise in working with people, their emotions, and their stumbling in the process.  However, this is what a mediator does - works with people. Works at removing the fear in the parties and guides them in the process.

In 2009, a book titled, IMMUNITY to CHANGE, by Robert Kegan and Lisa Laskow Lahey,  examined fear of change and its probable causes, some of which can be applied to mediation, we’re all human after-all.  As the title implies the mediators behind the fence feel immune to change I believe because of fear.  It’s the potential outcomes and the changes they need to make within themselves that cause the fear.

How can we change?  Why chance big errors when as experts we can guide the parties to a solution. We have the fear of not getting a result with the parties if we do not separate them. The mediators fall back on what they know about the law, or what they know about the subject at issue. The parties are supposed to accept this.  A compromise is better than a win-win result for them.  

The argument, what will the judge say has no meaning for mediation. The judge looks at the legality of the agreement, not that the agreement is good or bad. It’s what the parties agreed to that works for them.  Many a mediator has thought the agreement could be better, but that would be judgmental and mediators are impartial. Right?

Nobody thinks about, but it’s often written about, evaluation as a bias.  Think about it when there is an evaluation there is a winner and a loser with the mediator making the decision. In a compromise one side loses  something. That evaluation came from the mediator with little party input which does not mean a better result in agreement in terms of fairness and acceptance. It’s that a mediator overcame a perceived fear of not getting an agreement in the traditional way.

Being in charge and directing the process is preferred by many mediators. In fact giving the lawyers or the parties a choice of type of session removes the fear of failure. Or so they believe. The mediator says, “I know what this case is about, so here’s what you ought to do.” I have heard it in observations many times.

The  belief is the mediator doesn't have to be alert to every word spoken by the parties; doesn't have to ask open ended questions; doesn't have to be alert to the parties' mannerisms ( body language).  Doesn't have to be alert for hearing and seeing conciliatory gestures, doesn't have to re-frame a negative statement into a positive statement.   Doesn't have to listen to the options generated by the parties.  All these "doesn't" means there is no fear of making errors when engaged with both parties in separate session.  Because, as was once written by someone else  joint session is rare and not to be worried over.

What about the parties?  Do they have fear?  Sure, their big fear is not getting what they need.  We do read much about wants and interests, but what difference do they make? There’re starting points for discussion. Meeting the need is what's important.  Options help count the ways to meeting that need and they generate results. 

 Another way of looking at fear is through leadership.  The mediator as leader. The fear of not being a good leader is of concern. So I’ll give the parties what I know and they can decide. Isn’t this a change of decision makers?

In traditional mediation the mediator leads and guides the parties through the process.  Just like manufacturing, CEO's, Presidents, General Managers, etc., mediators manage the process.  Doesn't make any difference if a mediator (leader) has a PhD, law degree, or owns a liquor store. 

In mediation, the mediator works with the parties keeping them together and moving forward toward an agreement.  

During our teaching days we would get someone for crossover training who had a Master's in Conflict Resolution.  They would say that they were not taught to hold joint sessions and let the parties discuss their conflict. They are led to believe that the parties came to get a solution from them. Add this group, graduates in ADR, inside the fence of the new mediation culture.

In good leadership, good leaders let their people make decisions for the good.  Jim Collins, in GOOD TO GREAT referred to it as all riding on the same bus and pursuing the goal of success. For us it’s the goal of agreement.

In mediation it's all working together in the same room. That's our bus. The mediator drives the bus but the parties are indicating what their need is.  The fear of not recognizing where the parties are going can give the mediator a fearful experience. This could be a reason for being immune to change. Only I know, the mediator says, where this bus should go.  Sad, really.

There are many articles written about what we should look for in a mediator and I think we should add - immune to change. I know what I know and what I know will help the parties settle their conflict. As Epictetus said centuries ago, You can’t learn that which you think you know. So when parties begin to show emotions or begin to get angry, we run to separate rooms.  Nonsense, the mediator is the driver.  It’s time for a reminder of the agreement they made during the introduction. Will not interrupt and will listen to each other with respect at this table.  Most of the time it works, sometimes a brief caucus is needed, like ten minutes, and the other party is offered one at the end of the first short caucus. We stay on the bus.

If those behind the fence can recall what mediation is then there might be a chance to revive traditional mediation. 

In joint session, the parties work out their problem.  The mediator, referees, monitors, re-frames, and guides the parties in taking positive steps in reaching agreement.

There is one fear I hesitate to mention but I will.  Its economic, and suggests that being a traditional style mediator will instill the fear of being left out of the marketplace.  The new culture wants what they want in a mediator and leaves out traditional. Hence, no position in the marketplace and no income as a mediator.  Harsh and unjustified for a traditional mediator and the parties who will not benefit from self-actualization….which they both need. 

So maybe, fear will hang around for awhile.  We’ll see.

I’ll keep digging and finding more gems for  restoration…….there are more.

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.



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