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<xTITLE>Exemplifications of Typical Topics: Mediator as a Playwright (Part I)</xTITLE>

Exemplifications of Typical Topics: Mediator as a Playwright (Part I)

by Milan Slama
August 2021 Milan Slama

Exemplifications of Typical Topics: Mediator as a Playwright

(Part I)

There are certain reoccurring themes, which frequently surface and resurface during the conversations, taking place during mediation meet-ups. These themes are often deeply ingrained in the conflicts, parties have with each other. They become topics of conversations or are avoided. They are manifested by the accusations of wrongdoing of by the lack of action accused party failed to do. Sometimes it is not about action or in-action, but about the frequency and quality of actions, which have been formulated as requests, demands, unsatisfied needs, or the lack of care. Some of these topics are formulated as the judgments about person’s character (she is evil, or she is a liar) or mental capacities (He is stupid, or he is intellectually lazy). Sometimes they reflect the manner or the parties relate to each other (distrust, vindictiveness). Sometimes they reflect parties’ preferences, capacities, character traits, and shortcomings. Mediations incorporate additional subject-matters, described in the language of practical and impersonal problem solving. Here, mediators follow the maxim, “Separate problems from people!” These subject-matters which are often called agendas or issues, become predominantly associated with the negotiation process (Who gets the house? How much money -damages in legal terms- will the employer give to the employee? Who is responsible for the repairs of the apartment unit?) In this chapter, the focus is on those subject-matters called ‘conversational’ topics (or themes) which mostly speak about conciliatory effort and relationship repair. 

 We already mentioned that the organizational structure and the cohesion of conversations is one of the tasks mediators take on, when they orchestrate and coordinate conversational flow with the help of other partakers in mediation.  Staying on topic, setting up agendas prior or during mediation, asking parties, if they are willing (or not willing) to talk about certain subjects, are parts of the task.  Therefore mediators, from the performative stand point, have multiple roles. Not only are they conductors (directors) and coordinators, who stage the process of mediation. They are also playwrights, who creatively approach many of the subject-matters, relevant to a specific (type of) case.   

There are many unique themes, which directly or indirectly, are discussed during mediation. Following is the list, which can be easily expanded by readers. What interest us, is the fact, that these themes or topics are components of the conversational exchanges between parties and mediators, parties and their representatives, and occasionally, parties themselves.  

  • Lying and Truthfulness

  • Principles versus Practicality

  • Being Right and Being Certain

  • Claims of Superiority (moral, intellectual)

  • Timidity, Assertiveness, and Courage

  • Risk-evaluation and Risk-taking

  • Decision-making and Authority (collective, individual)

  • Contribution (value and effort)

  • Forgiveness (the unforgivable versus grace)

  • Fairness and Merit

  • Consistency (double-standard and preaching without doing)

  • Denials and Acknowledgments

  • Blamings, Accusations, and Excuses

  • Unwillingness to step to the (Low) Level of the Opponent 

  • Being Vindicated and Being Vindictive

When a playwright writes a dialogue, he or she has in mind many aspects of staging with regard to the play. A dominant theme is one of those aspects and at the same time one of the elements of a play. There are many other. Stage itself is a result of the collaboration between stage designers and stage operators and must be included in the overall playwright’s vision. Play is mostly created on ‘paper’ in the form of text. A director makes the text come to life through verbal and physical actions and interactions, she or he instructs actors to perform. Dramaturgy is the way, how artistic vision is accomplished. 

At this point, it might be useful to reiterate, that our approach to mediation is inspired by theatrical arts, by social psychology and interactional micro-sociology of Erwing Goffman, where gamesmanship and play are indispensable terms, by dramaturgic approach of Kenneth Burke, and by the concept of conflict as a dramatic tool. 

We started the book with the focus on practice and we considered mediators to be primarily practitioners. Theater has its own list of practitioners. They are; the actor, the playwright, designers and technicians, the director, and the critic.  Mediators are conflict resolvers and conflict is one of the most important ingredients of a play, written and scripted by a playwright. In the beginning of his already referenced book, Robert Cohen writes

      It is a truism that drama when used in daily life, implies a situation fraught with conflict.

Later, in the chapter called The Playwright, he offers the following thoughts

 Writing scenes of forced conflict accelerates the exercise and becomes a third step toward the creation of a play. Scenes of separation, loss, crucial decisions, rejection, or emotional breakthrough are climatic scenes in a play and usually help enormously to define its structure. If a writer can create a convincing scene of high conflict that gets inside of each of the characters involved and not merely one of them, then there is a good chance of making that scene the core of an exciting play-especially if it incorporates some subtlety not dependent entirely on shouting and denunciation.  

Sounds familiar? 

In the subtitle of this chapter, we labeled mediator as a playwright.  It is a creative license, which allows mediators to improvise or to script certain conversations, addressing specific (pertinent) themes or topics in the form of exchange with the parties.  We listed some of those topics and would like to take on the role of a playwright, creating some of the conversations, by selecting few themes from our inventory.  (The themes we emphasized in bold letters.) We also encourage readers to choose a topic they might like, and write their own conversations as an exercise. Before we start with the first topic, we need to remind ourselves, that any conversation we design or develop, could be written in many different and alternate ways. The creative license allows us to bring about our unique voice (or the individual style of mediating) and it reminds us about multiple ways, conversation can be approached. What should hold the conversation together, is the theme itself and the topical coherence, which gives it a meaningful structure and unity.   

Timidity, Assertiveness, and Courage

It is not easy to face one’s opponent. The encounter with a person who is considered disagreeable, aggressive, domineering, morally reprehensible (the evil doer), vindictive, or deceitful can be a stressful or a traumatic experience.  Once that person is conceived as an adversary, just a thought of being in the vicinity of him or her might create an unpleasant, visceral reaction and discomfort. People are afraid going back to work, because they have nightmares about meeting their supervisor or a colleague. Husband or wife prefers staying at work so that he or she does not have to deal with daily naggings or constant put-downs.  Siblings do not talk to each other, because they compete for the property of their deceased parents. A tenant is afraid of a landlord and a landlord worries about a tenant who will take revenge on her and will damage her property. Neighbors avoid each other, because they do not like or respect each other. Friends, partners, neighbors, and even people who do not know each other become the worst enemies.

Not every mediation tests individual’s courage to face an adversary. Sometimes mediation is a fairly non-dramatic event. The representative of an insurance company listens to the attorney who represents a party inflicted with some form of physical injury or the loss of property. Stories are exchanged, facts (documents) are presented, arguments are stated, and the amount of money related to the loss or injury is negotiated. An individual or an entity does not have to have any apprehension toward the opposing side and does not fear an encounter with the opponent. Often, opponents are separated (caucus-ing), without facing each other, hoping that they will not have to see each other again and will go their separate ways.  Yet there are many occasions when the personal or collective matters of assertiveness and timidity play a dominant role in a relationship.  It is then up to the parties and their representatives to decide if there will be a face-to-face encounter, staged and regulated by a mediator.  The mediator, depending on the type and format of mediation and the institutional setting, might suggest or even encourage parties to meet in the join session. Yet, he or she cannot force them against their will. There are occasions, when a representative (attorney or HR officer) prevents a face-to-face encounter. The reasons vary. The representative wants to control the process and his or her client. The representative wants to prevent any altercation or escalation of the conflict. He or she wants to make sure that the client will not derail the representative’s strategy by stating something inappropriate or self-incriminating. The HR representative does not want to let some unfavorable information about the employer out. Yet, many times face-to-face encounters and direct conversations yield transformative results.

So, how can a mediator/playwright creatively impact mediation? She or he can produce a more-less scripted dialogue related to a specific theme and use it in conversations. (In this case, the theme or topic is Timidity, Assertiveness, and Courage.) He or she uses conversational tools to probe, to encourage, to assure, and to suggest.

PROBING

 (M)ediator: Is there anything which prevents you to talk to her in my presence?

             Was there any time during your relationship when you were at ease, talking to each other?

             What would have to happen to have a direct conversation between two of you?

            How is your ability to control your emotions?                                       

ENCOURAGING 

(M)ediator: It’s not easy, but your children would be proud of you if they knew, you are able to speak with each other. You might do it for them and their future.

                      There is an opportunity to explain certain things to each other. You might not have such an opportunity again. Perhaps there might be things you want to say to him, he needs to hear, even if it might be uncomfortable to do so.

                      I can only imagine that you had to face some difficult challenges in your life and you were able to overcome them. That had to take a lot of courage. Can you tell me about the time you were in a tough situation? 

ASSURANCE

(M)ediator: I can assure you, I have enough experience with managing these difficult situations. But I also understand, things can get out of hand. To prevent that, we will agree, that when the conversation becomes too uncomfortable or stressful for one of you, we will simply interrupt it or terminate it. You can also decide in advance, how do you want to talk to each other and what needs to be avoided to make it a productive conversation.

SUGGESTION

(M)ediator: You did not talk to each other for a while. Perhaps you lost confidence how to do it. I am glad you both found the courage to face each other, while being uncertain of the outcome and having some trepidation. It says a lot about both of you. So, what we will initially try to do is to break the ice and start with something easy and comfortable. One of you might ask how is your family or job. You can talk about the new place, you moved to. Once we have a good flow and good vibe, we can focus on more important things. What do you think?     

                      Following is the example of the conversation between the siblings and one of the spouses, related to the family business, where one of the siblings is the owner and her brother is working for her. The tension and conflict is mostly between the wife of the brother who does not get along with her sister-in-law and has a tendency toward aggressive and disruptive behavior. The husband is mostly quiet. They agreed to have a join session, wanting to went their grievances, their criticisms, and to discuss the future of their cooperation, related to the family venture.

(M)ediator:  We are talking together for a while, and I happened to notice that the conversation is mostly between you Anne and Amanda. Yet, it is Frank who is directly involved with the business operation. Frank, would you like to say something and help us to understand what is on your mind? 

(H)usband: I don’t have too much to say. Anne is very good at saying things, she is much better than me. So, I let her talk. 

(M):  I see. Well, when we were talking just you, Anne, and I, you told me about some experiences from your life, before you were married. You talked about your military service and you sounded very proud of your accomplishments. I have to say, it really had an impact on me. You showed exceptional courage every time you were on the battle field. I am not sure, if I would be able to go through things you faced.  Yet, when we talk together, you are hesitant to voice your opinion and say what you want, letting your wife speaking for you. (turning to the wife) I cannot imagine Anne, that you would not like to hear what Frank might offer from his perspective. These is an equal opportunity for everyone and any of you can contribute with something valuable. 

(W)ife: Usually, Frank lets me decide what needs to happen. But, if he wants to say something, I am not going to prevent him.

(M): That’s is really generous of you. Frank, if you have any ideas or suggestions how to improve on the situation with your sister and the business, please go ahead. 

After being encouraged by the mediator, the husband started to make a lot of suggestions. His timidity, at least for time being, disappeared and he asserted himself. His demeanor changed. By facing his discomfort and embarrassment, he was finally able to reestablish his ‘manhood’ in the eyes of his sister, wife, and the mediator.  Coming to terms with his distress and his willingness to overcome timidity when dealing with his wife, he finally met his challenge. Through encouragement, he executed (performed) the act of courage. 

Following is another example, related to the selected topic.

(Mediator): You come across as a pretty tough guy, who is not afraid of anyone and does not get easily intimidated.

(P)arty:  You might say that.

(M): Yet, you are telling me, that you don’t want to talk to him. Why is that?

(P): First, he is worthless and he is a crook. Nothing to talk about.

(M): Did you mentioned that not so long ago you used to talk together all the time?

(P): Yes, but that was before I learned what a scumbag he really is.

(M): Don’t you want to tell him how you feel about what he did to you?

(P): It would be just a waste of my time.

(M): But you told me, that you want him to know, what a scumbag he is.

(P): You can tell him, what I think about him.

(M): Than it does make any difference. The time will be still wasted, regardless if I tell him or you tell him. But, being the guy who is not afraid to face his enemy, it would be more authentic, if it comes from you. All what I need to do, is to ask him if he is willing to speak to you. Then you can figure out how you want to talk to him about things you did not like. And all of us will make the effort to assure that the things will not get out of hand.

Contribution: Value and Effort

One of the most frequently reoccurring themes during many conflicts and subsequent mediations is about ‘who did or did not do what, for whom’. We hear certain statements from parties with regularity. (In all these statements, ‘you’ can be replaced by ‘she’ or ‘he’.)

  • I pretty much financed the house, while you barely contributed at all.

  • I am taking care of the kids and the household, while you go and have fun with your friends.

  • I tried so many times to help you and you are still complaining that I do nothing.

  • You do not value me at all.

  • I sacrificed my career so that you can go to school and instead of gratitude, you found a younger woman.

  • Whatever I do, is never good enough.

The seven statements tell us plenty about what is wrong. Not only they express the perceived lack or  uneven contribution by one of parties, stated by the opposing party. They also suggest, how the lack of action or inaction, valuation and devaluation, contributes to the conflict between the parties. It is a grievance and an accusation at the same time. It is also a call for the repair of relationship by requesting what is missing. That is, an equitable contribution, an equally shared burden, and often, the cry for being cared for or regarded.  

A few Important words jump out. Caring (regard), sacrifice, worth (value), and effort. One word is missing, ‘we’. There is an obvious disconnect between ‘contestants’ in the drama of life. There is no mutuality and not too much cooperation.     

CARING  

In close or intimate relationships, caring plays a very important role. Our attitude toward others or things can be positive or negative (love/hate, liking and disliking). Yet, when people express, that other person does not care about him or her, what they frequently mean is, that the other person simply disregards them, does not have any concern for them, they become insignificant and invisible in the eyes of the other person. They do not matter. 

SACRIFICE

Sacrifice is the measure of what one does or does not do for others. It is a standard grievance, when one person states, that instead of pursuing her or his goals, dreams, projects, or career, he or she does the things for other persons (family members, friends, colleagues) so that they can fulfill their goals, dreams, projects, or careers. It is the grievance which implies the lack of appreciation, gratitude, and credit one deserves. Sacrifice is the statement of a disproportionate contribution. (“I did so much for you and you do not even say thank you!”) It is the statement which communicates to other person, that what a person voluntarily gives up for the sake of significant others, is disregarded.

WORTH 

“He is completely worthless.” This pronouncement (judgment), is similar to the one on our list, “You do not value me at all.”  The claim, which is also a grievance and an accusation at the same time, communicates to other person a request (demand) to fulfill the needs and also obligations based on the written or tacit agreement between people who claim to have an ongoing relationship. It also implicitly states, that the things one person values are devaluated or not valued at all by the other person in that relationship. (“You do not care about things which are important to me!”)   

EFFORT

A person makes an effort for the sake (benefit) of other individual(s). She or he might try hard or not very much. Even if the effort is there, it might not yield any results. The difference between outcome and effort is often a measure of contribution. If someone measures success by the outcomes, the effort might be completely disregarded. Trying hard can be the measure, how much one person believes, he or she cares for the other important persons in his or her life. And yet, the great difficulty to measure contribution is the incommensurability between outcomes and effort. What we deserve from each other and what we own each other becomes the touchy subject of a potentially heated conversation between mutually dissatisfied parties.      

All four notions are intimately related and are requests for fairness when it comes to disproportionally perceived contribution. These requests hide distinct priorities, preferences, and values parties bring into their relationships. These priorities, preferences, and values can change with time. The parties who used to share certain values might grow apart, without realizing that their values, which were once aligned are not aligned anymore. 

We might recall that in the chapter dedicated to Conversation Analysis, we mentioned different types of adjacency pairs. One of those pairs was Question/Answer. Another one is Request and Response. As we can see, requests are typical claims parties make to each other. Request might be addressed, avoided, disregarded, passed by without response. (Adjacency pair is not completed). Request without response points to unfulfilled expectations. Requests and expectations often become the subject of conversations and consequently the subject of negotiations, during mediation.  

Two conversations between a divorcing couple will illustrate the topic of contribution. The conversations take place during two caucus sessions, one with husband, the other with wife. The level of animosity and distrust between parties is quite high. There is a mutual disrespect for each other expressed by both, the wife and the husband. Both are good parents who deeply care for their children, yet they bring different set of priorities to the table, trying to find the solution how to share the time with their kids. 

Conversation with husband

(H)usband: I am sure that you noticed that I am an engineer. I have a tendency to look at every detail and to make sure that everything works. But she disregards all my effort or suggestions. She does not have a capacity to process what I am proposing. You cannot imagine how much I tried. All what I can tell you, it is the exercise in futility. Nothing registers. I don’t know if she is that stupid or she is doing it out of spite. 

(M)edaitor: So, you are the reasonable one.

(H): Yes

(M): Do you think that she tries? 

(H): Even if she tries, it’s useless. It never amounts to anything.  Nothing gets done and nothing works.  You can see it from how this mediation is going. It is going nowhere. 

(M): So, you believe that she cares about the kids, but she does not care what you have to say. She does not care about you, period.

(H): Exactly. But I have to tell you, I don’t care if she cares or not. I don’t care what she thinks either. I just want this to be over with and go on with my life. 

Conversation with wife

(M)ediator: I appreciate your patience and I am eager to hear from you, what you think are the biggest obstacles and how can we move toward the resolution on many issues you both presented.

(W)ife:  Sure, I will be glad to answer any questions. I hope you can help us to figure something out. I am very tired. It is going on for too long and kids are not happy. They don’t know what to expect. They go from one place to another and they are complaining all the time. They don’t have any sense of stability. I am very distressed by his unwillingness to cooperate. He does not listen. He does not take me seriously. My ideas are worth nothing.

(M): Hmm, what it is, he is not getting?

(W): Ok, let me tell you, I am the mother. I know what the emotional needs of my kids are. You cannot imagine, how much time I spent with our children, making sure that they are happy at home. I am the one who takes them to the doctor, when they have medical issues. I am the one who takes them to therapy. And I don’t want to mention the time I spent on washing their clothes, putting them to bed, making sure that they are well fed and tidy. I sacrificed so much, without getting any gratitude! 

(M): Do you think that your effort and the things you did for the kids were appreciated?

(W): Not at all. Sometimes it felt, as if I don’t exist. He locked himself in his room, always working on something, or pretending he is busy. One thing is clear, he does not understand, what the kids really need. For me the family and the holidays spent with other family members are very important. That is why I am asking for Thanksgiving and Christmas. If he wants to tinker in his ‘man cave’, that’s perfectly ok. But I insist having these holidays, so that my family can get together.  

Both conversations illustrate the difficulties with discrepant assessments of contributing and sharing. They for sure illustrate, how these distinct assessments contribute to the conflict between the parties.  

Occasionally, the conversations about contribution can take a turn which can complicate the whole matter. One of the parties can offer a following assessment and critique. “I am tired of listening how much he did for me. He always asks for credit. He is doing it only because he wants something from me, in return.  He doesn’t do these things out of the goodness of his heart. He always applies some conditions. He doesn’t know what unconditional love is.

Biography


Milan Slama is a practicing mediator and arbitrator in the Los Angeles area. He is a co-founder and the Board member of VBMC (Valley Bar Mediation Center). Currently he is a contractor for Los Angeles County and he also mediates for Chilren's Court.He has been associated with the LA Superior Court and the Santa Barbara Court (CADRe program) where he has been mediating the variety of litigated cases. He has also been associated with EEOC, LA County Bar Association, the City Attorney's Office, and Mediators Beyond Borders. He serves as an arbitrator for FINRA (Financial Industry Regulatory Agency) Mr. Slama's educational background is in mathematics and philosophy.



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