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L.A. Mediator And The LASC Pro Bono Panel: Hope And Safety Or Rupture And Repair?

If your intent is transformation, you can get there by reading the telephone directory. ~ Unknown

My primary job as a mediator, aside from learning the “case” and acquainting myself as deeply as possible with the parties’ interests – is to “hold the space” of resolution.  That usually means that I begin the process by creating an atmosphere of hope that the matter can be resolved and insuring the parties that they are in a safe environment in which their conflict can be resolved without subjecting themselves to ridicule or other emotional harm.

What I had done here was create an atmosphere of distrust and peril.  Even before one of the parties telephoned me, I was naturally beginning to feel remorseful.  The telephone conversation that did occur could not have inspired trust in a mediator who seemed more interested in her own inconvenience than the well-being of the parties.  Led to believe (despite my persisting doubts) that the parties were proceeding to mediation in a good faith effort to settle their antitrust litigation, I agreed to arrive at the appointed hour with the same intention.

I awaken the next morning feeling pretty much the same way litigants do prior to a mediation.  They have outstanding conflict issues with one another – telephone calls not returned; suspicion generated by the games litigators play; harsh words exchanged between the parties; accusations lobbed by counsel across the bar to the sitting judge; and, the natural demonization that occurs when the parties stop talking to one another and put their disputes into the hands of attorneys.

No matter how sophisticated the litigation and how able the counsel, at least half the people in the room would rather not see the other half now or ever.  No one likes conflict.  But if your mediator is unskilled at facilitating a group process in the presence of conflict — even one she’s created — hire another mediator.

I enter the meeting room all “morning in America.”  Shake hands, make and receive introductions, sit down with the entire group in joint session, roll up my sleeves and get to work.  Everyone seems cheerful, unusually so.  They’re friendly with one another and only slightly wary of me.  We carve out one of the issues that seems most amenable to resolution, stay in joint session and make progress on that issue before we eventually reconvene in separate caucuses.

At some point in the process, when everyone seems affable and we are sharing war stories while waiting for a counter, someone mentions the email.  This spirit of camaraderie among counsel and the parties, I’m led to believe, arises from my irritability.  They united, they say, against me.  I somewhat sheepishly acknowledge that my intention was not to create a common enemy.  I admit, however, that I’d awoken that morning hoping that, at a minimum, the parties would have come together in the spirit of resolution against a mediator who’d accused them of gamesmanship.

Five hours after we begin, we have narrowed the issues, resolved significant differences in opinion and have whittled a $10 million dispute down to a $500,000 difference of opinion.  I leave confident that the parties will resolve that difference, either through direct negotiations or in a future mediation, with or without me.

There are takeaway lessons here – not the least of which is a reminder that we can resolve the conflict we create simply by showing up and being accountable for our part in it.

The larger lesson about developing conflict-resilience will be the subject of the final post in this series tomorrow.


Victoria Pynchon

Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all… MORE >

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