Science and Art
There is no cookbook recipe for success as a mediator. Each mediation case is different and each mediation participant is unique. As a mediator, you will truly practice mediation, in the way that a devoted pianist practices the piano or an aikidoist practices aikido. Your office will become a place of experimentation and learning -- a dojo. There is always more to learn in assisting others to reach agreement. Every mediation case is an opportunity to learn and serve.
Mediation is both science and art. The science of mediation is well represented in this manual. There is great merit in seeking to comprehensively set down helpful structures and concepts of mediation. To become the best possible mediator, you need to have supportive cognitive structures to work within. Fully understanding the rational side of mediation will not, however, make you an effective mediator. Effective mediation involves skillfully working with real people, not just knowing theoretically how to do that. With time, the structures of mediation practice become ingrained, freeing the mediator to become more outfocused and responsive.
This balance between the science and art of mediation, between the rational and the intuitive, is what attracts many of us to practice mediation. That and the infinite challenge of assisting those in conflict to reach agreement.
Developing Your Toolbox
I ask that practitioners and students view the concepts and skills described in this manual as available tools for your mediation toolbox. Which of the available tools you use is largely a matter of professional judgment and discretion. When it comes down to it, the right way to mediate is the way that works! Fortunately or unfortunately, what works will vary on a case by case, participant, by participant and mediator by mediator basis. A key for the mediator is to be able to notice, in the moment, whether what he or she is saying or doing is working. If it is not working, the mediator needs to do something different! It is also said that the most flexible component of a system controls that system. As a mediator, you want to be the most flexible component of the system in selecting and implementing your facilitative tools and techniques.
Meet the Parties Where They Are
If I have learned anything as a mediator, it is that you are not going anywhere unless and until you become one with the mediation participants. It is only by effectively hearing (seeing and feeling) where each participant is at, and by honoring the participant in that place, that you are able to assist participants to shift from their typically righteous views to consider their situation from new perspectives and reach constructive and principled agreement.
Balancing Structure and Responsiveness
Effective mediation is a balancing of structure and responsiveness. If the mediator is too structured, there is the risk of being out of synch with the participants. If the mediator is too responsive, participants will feel lost, will likely plunge into their past-focused drama, and, at best, develop incomplete and fragile agreements. You may want to think of facilitative structures as a supportive context within which to exercise your facilitative intuition. The goal is to strike a maximizing balance between structure and responsiveness.
The Interdisciplinary Nature of Mediation
Becoming a mediator is more a state of mind than it is a set of specific skills. Whatever your profession of origin or background discipline, as a mediator you will no longer have the luxury of approaching clients from that perspective alone. To effectively mediate, lawyers need to understand business and relational issues; mental health professionals must understand business and legal aspects; and other professionals will also need to appreciate all parts of a dispute. Virtually all business disputes have a relational aspect to them, and virtually all relational disputes have business aspects. Business and relational issues frequently have legal ramifications. The effective mediator becomes, with time, conversant with regard to relational, business and legal issues.
The wise mediator also appreciates when it is desirable to recommend the infusion of the mediation process with credible expert information from resources acceptable to all parties. One mistake that many beginning mediators make is to try to do too much -- to be experts in all areas. It is always safer for parties to rely on their own legal counsel, accountants, valuators, and other advisors for expertise in mediation. The mediator's role is to facilitate agreement, not to know all about all things.
Are Mediators Neutral or Balanced
Mediators are often presented as being "neutrals," which may be misleading. "Neutrality" suggests to some that the mediator is objective and "above the fray." This is generally not be accurate in interest-based mediation. The mediator to a dispute is, more accurately, a part of the system -- a participant. The mediator is actively engaged with all parties and in different ways. Overall, the mediator's involvement should be balanced between the parties. Thus, rather than separation or distance, "neutrality" in mediation may best be understood as a balanced and active involvement with the parties in a way that does not favor either party nor any particular result.
The "Right Way" to Mediate
The "right way to mediate" is a contradiction in terms. There is no right way (except the way that works). There are, however, certain skills and strategies that can be developed and issues addressed to assure that decisions made by the parties in mediation are truly informed and voluntary. It is crucial to remember that the mediator is responsible for the process, not the outcome, of the mediation.