Dispute Resolution Mythology
Mythology is the means by which individuals and society understand and organize their world and perpetuate their belief system about that world. As Joseph Campbell pointed out in The Power of Myth, mythology is as much a part of our modern day world as it was for the Greeks centuries ago. Myths are not lies per se, although the term has perhaps been misapplied in popular usage to such an extent so as to be taken as synonymous with untruth. Myths germinate from a seed of truth nurtured by human hopes, desires and the need to believe a certain world view. The individual's operative mythology is a fundamental component of his/her construction of reality - view of the world and how it operates - along with the effect of gender, race, age and developmental stage, and cultural, religious and ethnic heritage.
The pervasiveness, depth and importance of mythology is evident in our culture. Myth is transmitted to us from our earliest years and throughout our lives from many sources. It is inescapable. The operative mythology a party brings to a dispute may, in some sense, need to be pierced, altered or expanded in the mediation process if the conflict is to be resolved. In other words, while myths allow parties to harmonize their lives with reality, they are not reality itself. The mediator will need to work in the space between how the parties believe conflicts ought to be resolved in "fairness" (what is right) and how they will be resolved in fact (what will actually work). The mediator must create a certain measure of dissonance in the parties thinking to gain their commitment to mediation and a practical resolution.
While there are numerous operative myths, four can easily be addressed with regard to the mediation of disputes.
In the myth of justice, each party to a legally framed dispute believes that a thoughtful and compassionate judge will deliberate and make the right and fair decision. In the myth, the judge has touched the sword of Excalibur (King Arthur and the Knights of the Roundtable), assumed the mantle of fairness, the back robe, and ascended to the bench to do justice. Because few clients (or lawyers) believe they are not fair and right in the position they advocate, the expectation is that the judge will vindicate their belief. In law, the myth perpetuates the belief that there is "a remedy for every wrong." The legal system is a "big fix-it" machine. The direct impact of this mythology in legal practice, on both parties and professionals, cannot be underestimated. In virtually every interaction between judges, lawyers and clients, "fairness" and "rightness" is an implicit or explicit subject of discussion, premised on everyone's views and expectations of the justice system. Whether the mythology has been transmitted in a grade school civics lesson or by Perry Mason or LA Law on television, the depth of the belief is unmistakable. If the myth of justice remains intact, the parties will have little motivation to mediate.
The corresponding myth of finality is a belief that a court rendered decision is equivalent to a final settlement that will be accepted, or at least followed, and if not followed, at least enforceable. However, disputes, while they may be "justiciated" (decided) by courts, are seldom resolved; court orders are frequently not the end, but only the beginning of further legal wrangling. Appeals and post divorce motions can continue years into the future, and effective enforcement of court orders is difficult at best. Yogi Berra's adage, "it ain't over 'til it's over," does not apply in complex disputes, especially family conflicts. The more accurate statement is:"it ain't never over," at least not because the parties have a final agreement or have gone to court.
This myth posits that decisions made by judges, arbitrators or other experts are purely logical and dispassionate. Law, medicine and other disciplines are viewed from a reductionist perspective as being essentially "cookbook," formula exercises. Facts, once established can be subjected to legal analysis (diagnosis/prognosis); a strategy decided upon (treatment); and an outcome accurately predicted and obtained (cure). Few determinations are actually derived in this linear manner. Human variables (bias, politics) virtually always color, if not fundamentally alter, final results.
This myth is a corollary to the myth of rationality. It is derived from the notion that decision-making is purely an objective enterprise. The professional/expert is thus placed on a pedestal by the parties and he or she believes himself to be "above the fray." In point of fact, no one is neutral; all are participants and part of the system. For this reason, the mediator should not present his or her self as a neutral, the mediator is by definition an active participant in the conflict system. Instead, the mediator should be "balanced," a term that connotes a dynamic, involved role that engages both parties. Instead of being a "neutral" who protects neither party, in being balanced, the mediator seeks to protect both parties.