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<xTITLE>SHOVEL 8 - Traditional Mediation and the Mirror….</xTITLE>

SHOVEL 8 - Traditional Mediation and the Mirror….

by Paul Rajkowski
January 2022 Paul Rajkowski

Well, this looks like about as far as the digging goes. Traditional mediation is raised up.  Now what?  Was it just a series of mind jostling thoughts about a tradition in the mediation world, a stirring up of the current culture or was it something else? 

 How about a wake up call to get back to serving the parties?

Will it happen?  Possible.  Can traditional mediation reclaim itself as the foundation of self-determination in conflict resolution? There is much written about the ethical mediator, but not much about the self-interested mediator. The one who wants to win and will do all the evaluating that can be done to win. So what will it take to make the change?

For one thing, it will take individual determination and a commitment to understanding  the performance of traditional mediation. Becoming mentally adamant and refusing to evaluate or shuttle is a good start, but with a caucus when necessary.   

Recognize that mediation does involve emotions and this is important. The current culture tries to avoid emotion by the separate session method. Showing dignity to each party is a better start. And just how is that done?  Try the mirror.

Stand in front of a mirror, your choice.  But needs to be big enough to capture the eyes, sitting or standing, now stare at yourself.  Many Psychologists say that five minutes is max and hard to do for many.  Why is that? Maybe, it’s because you are looking at your real self and your real self is staring back, but that’s the beauty of this method of self-understanding.

Staring at yourself and feeling your gut tightening up as you wonder is this  about fear or courage or something else?  You’re the mediator you are expected to do a good job under any and all conditions or situations.  The expectation today is far from tradition.  Injected in there is self interest or the ol’ notches on the mediation gun. As the shovels have shown its mediator control that is taught. But traditional mediation needs a different control.  An understanding of the emotional nature of the process. You can find it in the mirror.

Yes, the parties have to benefit, they have to self-determine their way out of their conflict. If the mediator doesn’t allow that or thinks the mediation is twisted or going in the wrong direction and wants to leave or cancel themself out of the mediation, who loses? Both loose. The identity of the mediator and the self-determination of the parties. But the parties get blamed for the abrupt end. “They just didn’t want to cooperate.”

Still staring at yourself, imagine your identity and the courage and lack of fear of doing the right thing. Your possession of self dignity is in play and natural. The parties need help and the mediator gives it to them with  a defined role.  Again, there are articles that a mediator has to be flexible?  Not exactly right, the parties have to be flexible and it’s the mediator’s job to keep them flexible. It’s also the effort to stay neutral at all times. Many articles are written about what a mediator should be, what knowledge to possess, neutrality, bias, evaluator, on and on.  Haven’t seen  many about what a mediator “has to bring to the party” that keeps the parties together. The emotional toolkit.

How about dignity? We all have a need for dignity.  The parties are at the table because of a conflict.  They want and need answers from each other to end their conflict.  They came to the table to work it out.  Do they expect that the mediator will do it for them? Sometimes, depending on their counselor’s input, we must remember in separate session the mediator leads them to a way to solve the conflict and takes away their dignity. 

In 2011, Donna Hicks, Ph.D. wrote - Dignity, Its Essential Role in Resolving Conflict. She writes about people sharing a longing for dignity - the feeling of inherent value and worth. When we feel worthy, when our value is recognized, we are content. Hold this thought, because that feeling is in the mediator, too and that’s you.

So let’s look at giving dignity to each party. They are at the table to end the conflict.  The mediator gives them the dignity to manage their progress in ending the conflict.  It’s a compassionate approach in traditional mediation. The parties have a recommended stranger in front of them and are concerned about what they will experience. The mediator is challenged right there. Giving the parties their dignity is a good start.  And how does that work? Don’t think for them or evaluate their case. Otherwise it is taking what dignity the parties have and dismissing it in order to evaluate their case and notching that gun. Dignity resides in them when speaking for themselves and making their decisions. Mediation should not take that away.  The mediator encourages them to make opening statements and then gives feedback exact word for word. The party has made the opening  statement and the mediator heard and shows them the respect and the dignity of listening. There are many stories about the mediator not listening to them or separating them for one on one discussions. Not the way to go.

They are people and giving them respect and dignity makes them confident they can achieve their goal of agreement. The mediator is there to help and encourage them along the way.  

Open ended questions, positive reframes keep the mediation going in positive progress. Every step, a means of dignity to the party and the opportunity to self determine a result.  

Reframing, some write that it’s the mediator changing what the party is saying and making it the mediator’s own idea, maybe in separate sessions this happens.  Reframes are for keeping the discussion positive.  It’s still the parties discussion but the shift becomes understandable, digestible and easier to listen to each other in a positive way. They are acknowledging each other at the table. The mediator makes that happen and the parties keep their dignity.

Keep staring, find total commitment. You want to start out neutral, that’s good.  The bad is drifting away from good. Let’s say during the course of the mediation the party says something that sounds offensive to you. 

Look in those eyes and ask what would I do?  Is the other party offended?  Is there a basis for a reframe?   My commitment is to keep the dialogue moving forward, whether I like it or not. I have to stay or the commitment I made to the mediation ends.  Look in your eyes, can you stay committed maintaining an identity as a mediator? The parties need you to help reach their goal. What needs to change for this to be a success?

Still looking in the mirror remember they deserve the dignity to be listened too.   Giving compassion helps them settle down and work on the issue or issues. 

What does it do for the mediator? It gives the mediator a positiveness approach to managing the process.  Staying anchored in joint session and letting the parties express themselves.  They have kept their dignity and are better able to discuss possible solutions to end their conflict. The options flow and the ideas take shape into an agreeable solution.

If you strengthened your resolve to maintain a commitment of acknowledging each party’s dignity as an individual with a need then it’s time to leave the mirror. Maybe discussions with others will help change others and reaffirm you.  Remember, like mediation, discussions  must stay positive.

For many, staring into a mirror won’t happen.  But it still could.  It’s up to the person to decide, self-determination, right? Maybe, it will take several stares?

Step forward with traditional mediation as your method of operation.  It is possible to create a trend of returning to traditional mediation one mediator at a time.  Only the parties who relate their stories about how the mediator gave them dignity and the feeling they could discuss the need to achieve a conflict ending success.” He/she made me feel very comfortable at the table.” (We heard few comments like this during our training days.) These story tellers will strengthen traditional mediation one case at a time. That story will begin when, after the mediation, the party is talking to their lawyer who also witnessed the joint session and can share with their client the good feeling of participation and resolution.  The lawyer will hear what it was the client appreciated and remember it, for the next time a client needs a mediator. The lawyer remembers who to call.

The mediator’s notches will be the number of times the parties left with their dignity preserved….

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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