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Self-Awareness In Mediation

by Milan Slama
May 2010 Milan Slama
Mediators are like therapists in at least one respect. They need to know what issues they can or cannot deal with when it comes to the parties involved in mediation. We all have certain biases, positive or negative, which are often expressed through our positive or negative attitudes regarding certain people, certain situations, or certain beliefs people hold. The requirement, which is imposed on mediators, is to be able to handle the variety of emotional, situational, or ideological matters often presented during mediation. Mediators might not know about their biases and some gesture, some statement, or some situation occurring during mediation can serve as a trigger for excessive reaction by the mediator. It often manifests itself as a disproportionate positive or negative judgment or even misjudgment. Yet we are not supposed to judge the participants, we are allowed only to evaluate them. Often there is a blurred line between these two activities.

Self-awareness is something that we would like to expect from the participants in mediation and what we must expect from ourselves. It is based on two different insights. The first one relates to self-knowledge and it is an old Socratic maxim expressed through the words “Know your self.” The second one is a behavioral one. We need to know how we react in certain situations so that we can exercise self-control. Every mediator knows that any successful mediation depends on being in control of the process. Being in control of one self is a necessary part of that requirement. For parties, these insights can lead to the understanding and the willingness to take responsibility for their contribution to the conflict or the dispute they are involved in. When it comes to mediators, these insights help them exercise competence to perform their job well.

This article will address two different questions. First, what specific areas of self-awareness are necessary to perform the job of a mediator well? Second, how should mediators develop their self-awareness skills? Finally, there will be another topic we as mediators need to wrestle with. That is, how does self-awareness contribute to the issue of neutrality? In other words, knowing our values, preferences, and positive or negative biases, what should our engagement or disengagement be during mediation?

So here again is the first question. What specific areas of self-awareness are necessary to perform the job of a mediator well? Let’s assume someone does not like people who are lazy. At the same time his or her definition of laziness is based on self-imposed requirements and on the belief that people should work 24/7 and that work takes precedence over any other activity in life. Now, if the mediator is a workaholic and believes that not too many people can measure up to his or her attitude toward work, there is a good chance that any person who cannot perform in accordance with that kind of standard might be viewed as lazy in the eyes of this mediator. If, for example, a mediator is mediating an employment case where the injured party demands a certain amount of compensation, the mediator could apply a negative judgment based on his or her negative bias toward lazy people, especially if the judgment coincides with the belief that the party did not contribute enough to deserve the kind of reward s(he) asks for. So what can percolate in the mediator’s mind might be something like, ‘I cannot believe that this lazy bastard asks for that kind of money.’ Obviously, we need to distinguish this judgment from a sober appraisal such as, what is the value of the case when it comes to its merit from the legal standpoint.

Similarly, a mediator might believe that women should not play the victim in a marriage, rather they should always assert themselves. Then if during a divorce mediation, the wife does not act in accordance with the mediator’s expectations, she can be viewed by the mediator as weak, and thus not assertive enough, and the husband can be viewed as an abusive jerk. Of course the wife can be weak and the husband can be abusive, yet mediators should not let their attitude or bias influence their performance in a negative way. Compare the following two different statements between the mediator and the party during a caucus. Mediator: ‘The way you respond to this man, who is a major jerk, bothers me. Can’t you stand up for yourself? Don’t you see what is he doing to you?’ This attitude could create a serious riff. The party in the caucus can become defensive and can develop her own negative attitude toward a mediator. Here is a different way to have a conversation. ‘Have you ever thought how your husband is going to react when you act this way? Do you believe that this man ever respected you? Why do you think he did not respect you?

There are many different ways to exercise a similar intervention by a mediator, but it should be obvious that imposing the judgment founded on a negative attitude is not very helpful. Rather the mediators should assess their own biases through self-awareness and work with their clients to bring self-awareness to them. Here is the beauty of mediation. If the mediator with a negative attitude towards non-assertive women realizes that imposing judgment in a conversation with the party leads to a bad outcome, s(he) can then rectify his/her approach and correct mistakes.

It should be clear that because of our upbringing and our social/cultural contexts we develop plenty of beliefs and attitudes, which translate into our judgments and evaluations about others. Being non-judgmental while possessing these judgments is one quality a mediator must master. Yet there is a very important question that needs to be answered. Are there specific attitudes and biases mediators need to be self-aware of, so that they can perform their work competently regardless of what type of mediation they are involved in?

I believe there are a few.

First, it is the attitude toward authority. There is always a chance that there are plenty of powerful people in the room, from presidents of companies, and spouses with a higher earning power, to powerful attorneys. On the other side of the table there might be someone with comparatively smaller leverage and less influence.

If the mediator is either afraid of authority or has a negative attitude toward powerful people and has difficulty in dealing with situations where domination and intimidation are part of the game, then the mediator will very quickly lose control of the process. The negative attitude toward authority often creates a confrontation between the mediator and a powerful party; after all, people who like to dominate others and are most of the time in charge have the tendency to engage in confrontation if their wishes are not satisfied. The mediator’s negative attitude toward domineering parties will enhance chances for confrontation, and thus the loss of control.

If the mediator is intimidated by anybody in the room, the loss of control is warranted. There is another disadvantage of this negative attitude toward authority. Because the imbalance of power is often present during mediation, the mediator could side with the disadvantaged party. Similarly, the mediator can side with the party having leverage if s(he) identifies with powerful people. The bottom line is, instead of letting the biases toward authority impact mediation, mediators have to learn to deal with authority. That means, the mediators partner with the parties, while being in control of the process. Partnering with all participants enforces the idea of collaboration as the parties are moving toward the common goal to resolve the dispute or conflict. Partnering also means that neither the mediator nor the parties have the upper hand. When it comes to power, it is preferable if parties share it at least to some extent. Mediation is a collaborative process and even if one party has the leverage, because the case looks more favorably for that side, if intimidation and pressure are used, it will make the other side resentful and not very cooperative. In short, the mediator cannot be intimidated and pressured by any party, should not allow intimidation between parties, and must refrain from imposing his/her will on any participant. It is up to the reader to decide where the persuasion for the sake of a positive outcome for the parties applies and when the mediator crosses the boundaries by imposing his/her will on the participants.

The second attitude mediators need to work on is the attitude toward stupidity, or more gently expressed, the attitude toward people with the limited ability to understand issues at hand. As we all know, explanation and persuasion are two activities that mediators perform with all participants. Being unable to persuade someone because of his/her lack of sophistication can be a frustrating affair. It takes a lot of patience and skill to work with people who are not particularly bright. And if a person does not have the ability to understand the arguments, even the best mediators can feel completely helpless. To state, ‘He is stupid,’ does not help anyone. Even if you think that, don’t let it frustrate you, just acknowledge that some people are born with more capacity and sophistication than others. Remember, there is a good chance that the other might think about you being stupid and probably you would not appreciate their attitude either.

The third attitude might be the most difficult one. It is the attitude toward the weakness and the lack of character of participants in mediation. The mediator is viewed as an agent of trust and fairness. At the same time s(he) might not easily dispense with the negative attitude toward people who are cheats, violent abusers, frauds, and similar types. Even if the mediator assumes a similar attitude as a defense attorney who knows that the party s(he) represents is guilty and still proceeds with the defense because s(he) believes that everyone must be afforded the legal process, it is difficult for that mediator not to refrain from any judgment. I will talk about this later when discussing the issue of engagement and disengagement. For now I just want to acknowledge that watching people during mediation engaging in reprehensible behavior can be quite unpleasant.

Now the second question: how should mediators develop their self-awareness skills?

How do we go about trying to detect our biases if we are not aware of them? Can we make a conscious effort to go through the list of issues and behaviors, which are pertinent to a certain type of mediation? It doesn’t matter how experienced we are when it comes to self-reflection, that list will always be incomplete. After all, we are works in progress and there is always room for improvement. Realizing that we are works in progress is helpful, yet some of our attitudes are so deeply buried or taken for granted that self-reflection takes us only that far but not far enough. Then there are other people who can point to certain biases we often exercise and are thus detrimental to mediation. As long as we are willing to listen to them, learn from them, and apply their evaluations to better ourselves we are already making progress. Finally, there is the value of experience, or as we like to say, “We learn as we go along.” As long as we understand what is expected from us as mediators and what we should expect from ourselves, we can detect where we failed due to our attitudes, biases, and judgments. The mediation process imposes on us certain requirements and only if we are able to follow them, can we then effectively move toward positive outcomes. Let me present a hypothetical but plausible situation and demonstrate how a certain bias can arise from an unexamined attitude based on the lack of self-awareness and what the mediator should do after s(he) realizes its effect on mediation.

Imagine a situation when a male mediator works with a female client. This client suddenly wags her finger, directing it toward the mediator. Immediately the mediator has a visceral reaction and says to the client, ‘Don’t ever do that again!’ Obviously there was something about that gesture which triggered such a spontaneous and negative response on the part of the mediator. There are a few possible explanations for this reaction. Perhaps when the mediator was a child, his mom, while scolding him or punishing him, used the same gesture as the client. It is obvious that this kind of reaction will not be viewed favorably by the client, and it would thus have a detrimental effect on her relationship with the mediator.

So what is the lesson? The mediator needs to immediately realize that there is an issue he needs to address for himself, which he was not aware of previously. He needs to stop mediation and acknowledge to the party that he overstepped his boundaries and was acting in an unprofessional manner. He then needs to apologize to the party. After mediation he needs to reflect on the whole matter, trying to figure out why he reacted in a certain way and what might be a source of this reaction.

So, let’s summarize. An honest and constructive exercise of self-reflective attitude enables us to become self-aware of those biases, which interfere with successful mediation. Being receptive to suggestions of others also enhances our self-awareness. Finally, understanding the requirements of a successful, efficient, and good mediation, and understanding what is expected from us as mediators, becomes a gauge we accept as we apply our skills every time we jump into the fray. We do our best and then we reflect on what we can do better and how we can accomplish that. There is no substitute for experience. Through practice and through challenging situations, we need to find the answers to the following questions. What did we do wrong and what do we need to improve upon? What is it about us that prevents positive outcome and how did we contribute to that?

There is one more final note on this topic. It relates to self-awareness of the self-awareness and it is more based on observation than on thorough analysis. It occasionally happens that even the best mediators, with extraordinary insights and thorough understanding of how parties contribute to conflicts and what kind of self-awareness parties should posses to resolve them, are lacking similar insights about themselves. Having ego, being resentful, or jealous of others are a few manifestations of the lack of awareness, which these mediators detect in others but rarely attribute to themselves. It is an inconsistency between the skilled evaluations of the other and inability to evaluate oneself. It is an inconsistency we can all improve on.

At the end I would like to return to the question about the mediators’ engagement or disengagement during mediation as it pertains to the moral fabric and integrity of a mediator. It is an old dilemma between neutrality (disengagement) and the prevention of abuses of the mediation process and abuses between participants (engagement). This dilemma also begs the question, how much do we allow for face-saving and how much responsibility can we ask from the parties for their contribution to conflict or dispute. And finally what does it say about us as mediators, when it comes to our views of the mediation process; the same process which demands from us trust, fairness, and integrity.

Should we then consider our moral judgments about parties (i.e., he is a crook or a disgusting character or a troublemaker) as biases and refrain from them as much as we can? Or should we consider them as necessary to properly perform as mediators based on the requirements of trust, fairness, and integrity? Not an easy dilemma to resolve.

Throughout history we often witnessed negotiations between our government and the worst kind of enemy. (Sometimes the other side perceived us as the worst kind of enemy.)

Often we observed that one party engaged in disingenuous tactics and strategies and manipulated the other side to its advantage. If a mediator is part of a negotiation process, s(he) can not only be a witness to those kind of approaches, s(he) becomes a participant and a possible subject to manipulation or abuse. Even if we are not often faced with the dilemma of engagement or disengagement, and even if many times we can resolve it through skilled questioning and work with the parties without compromising ourselves or the mediation process, there will be occasions when we will not be able to easily resolve dilemmas between engagement or disengagement. There are occasions when the internal conflict based on our moral preferences and judgments come to full force. If we suspend those judgments we run the risk of parties getting injured and abused by our inaction or passive attitude. If we bring them into mediation we run the risk that our involvement compromises the process and we can be perceived as biased. Notwithstanding the fact, our moral judgments related to others might be inadequately justified and grounded. So what is the mediator supposed to do? Again, self-awareness is very important here. Each mediator needs to establish a threshold for her or himself. That is, each mediator needs to determine for her or himself, which situations will require his/her engagement, what way s(he) will intervene, and for what purpose. The same goes for the situations when the mediator decides to refrain from engagement thus satisfying the requirements of the mediation process and assessing the needs and the benefits of parties.

I hope that all of us involved in the mediation field realize the challenge. The refinement of our skills depends on self-reflective practice, which can only be achieved through the vigorous practice of mediating. Yet rewards are immense. As we go along, we learn to manage the variety of situations, diverse people, and ultimately ourselves. The opportunity given to us by the mediation practice is to learn and to master our own lives. And the opportunity is endless.


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). 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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