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<xTITLE>Do We Understand Traditional Mediation?</xTITLE>

Do We Understand Traditional Mediation?

by Paul Rajkowski
December 2021 Paul Rajkowski

It looks like we’re coming to the end of this dig.  I can see a part of the canister holding the remains of traditional mediation.  Do we understand it and its purpose? Can we bring it up and open it?  I think we do understand it.  Deciding what to do with it will be another story.


The mechanics of the process are simple and unchanged since its inception.  Many would have you believe it has evolved from what it was to what it is today.

In the latest culture of mediation, styles and “one size does not fit all” continue to beat down traditional mediation.  It’s contended that mediator flexibility leads to success. The fear of emotions rising up scares almost all mediators.  They write it is best to adjourn to separate rooms and let the “clients” cool down. 

They are so used to doing for the “client” so as a mediator the doing doesn’t stop. Remember for most of those behind the fence of mediation changes includes treating the  “party to a mediation” as a client to a mediation. Of course, this means doing something for them, as it is in their law practice.

So what is misunderstood is that a mediator has to adjust to a mediation. 

In the eighties the importance of self-determination was not forgotten or abused by using separate sessions to attempt to end the conflict. The parties were most important with the mediator maintaining neutrality.  Not just sometimes, but at all times.  Doesn’t happen much today.  

In 2000, Michael Lang and Alison Taylor wrote, The Making of a Mediator, in their book they wrote about the stages of growth of a mediator, from novice to artist in the development of skills.  It didn’t mean bring what you know and use it.  It means grow in learning what mediation is about and become skilled in techniques to use during a mediation.  To quote, “ The journey from novice to artist is a continuous process of exploration and learning nurtured by curiosity and the desire for self improvement.”  So why does the learning stop at evaluation and never go more toward artistry?  Artistry is a skill to becoming a first class mediator, but the effort has to be made.

Neutrality, is today, lip service.  A mediation needs the mediator to be neutral at all times.  Not sometimes, but at all times.  Any involvement or evaluation in the conflict is a mediator’s loss of neutrality.  Believe it. This loss also prevents a mediator from becoming an artist in the traditional mediation process and developing that artistry in growing to be good.

We also have experience of the mediator as criteria for a good mediator. What is means has nothing to do with the mediation itself.  What is meant is legal experience and subject experience. If the parties are in AI, construction, real estate, or whatever, the mediator needs to know about it.

Why? Mediation isn’t about the law and a subject.  It’s about two or more parties having a big disagreement over what is important to them.  There aren’t enough mediators in the world that would have technical knowledge about what’s important to the parties’ interest and needs.  But knowing about fear, courage and maybe NLP( Neurolinguistic Programing ) emotional characteristics and people’s emotional traits and other areas that help in working with people, building confidence in the parties to express themselves in making a clear expression of their need to end the conflict.

The parties are people and  mediators should have knowledge of people,   Mediators should be learned in how to do things in mediation that support each party.  Knowing about courage and fear, leadership, knowing how to motivate, asking open ended questions, being positive at all times.  No “if we get to agreement” rather “when we get to agreement.” The parties need to believe that the person sitting with them will be of help in supporting their discussions and search for agreement. Reviewing with them options that work in ending the conflict. It’s called trust.

In 2010, O. Russel Murray, wrote a revised handbook for litigators, The Mediation Handbook, Effective Strategies for Litigators. Sitting at the table listening to opening party statements can be a game changer.  Preparing for court is not the same as preparing for mediation.  Summaries most times don’t include personal comments by the party. They are legal adversarial briefs.  The opening statement by a party can be surprising.  Why because it is a request for a need that will end the conflict.  And usually it is personal in nature. Now creativity enters and the parties look to options to ending their conflict.

There is repetition here but what a judge would say has no relevance to the discussions. The parties counsel will keep them straight.   Even so, settlement of the conflict is prime. No, it’s not a reason the mediator should know the law.  The mediator isn’t there to know the law but to keep the parties level headed and moving forward toward agreement on ending the conflict.  The judge only decides if the agreement breaks no law.

So it comes down to traditional mediation being party self-determination.  They do it and they own it.  The parties will be more positive about what they did, when they do it. The mediator’s skill gives them that feeling of accomplishment.  They trusted the mediator to allow them to develop their solution to the conflict. The mediator may have asked questions of the parties that helped them go deeper into the options and eventually they moved themselves to agreement.

Let’s please remember that self-determination is lost when evaluation is used.  An evaluating mediator presenting the solution to the parties is not practicing party self-determination.  And, also, it’s not because they said - yes to the evaluation.  A mediator has to come up with a better skill set for eliciting self-determined responses.  Those responses are in that canister. Look and ye shall find. Ben Franklin, talked about order. Look at order as traditional mediation. “Let all your things have their places; let each part of your business have its time. Think in terms of others interests.” A mediator thinks of the parties and their needs, while holding order in the traditional mediation process. Looks like there’s a little more than a shovel full left, not back hoe size, but still a sizable amount……

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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