Quintilian, the ancient Roman rhetorician who mastered the art of eloquent speaking, once said that the key to persuasion is “the good man speaking well.” This brief quote captures several important components of persuasive speech, which is the type of speech used most often in mediation. First, ethical actions should be on the forefront of people’s minds when trying to change others’ views. Second, what we say is as important as how we say it. Although I disagree with the substance/style dualism, I do agree that mediators must act ethically and neutrally, and these goals are anchored around the things we say and how we say them. Before we can help disputants achieve a dialogue and move past conflict, we must recognize the dualisms operating in mediation. Balancing multiple dualisms as they spontaneously emerge during mediation is the sign of “the good mediator speaking well.” The ideas offered in this brief essay are meant to stimulate discussion over the general issue of theory vs. practice. In other words, we train mediators to identify patterns and use certain strategies, but our lessons rarely reflect what we see in practice.
Professionalism: Detachment and Empathic
People have different understandings of what “acting professionally” means. To further muddy these waters, acting professionally and developing a universal set of professional standards are two different tasks. In speaking with many mediators, attorneys, and judges affiliated with mediation, acting “professionally” entails acting ethically, honestly, patiently, and neutrally. The “professional mediator” conjurers up an image of a rational, impartial decision maker—which Robert Benjamin would disagree with (and I concur with him)—who properly weighs the costs and benefits of all interactions during mediation. Even popular culture portrays rationalized notions of professionalism, like the film The Professional, about the cool-calculating killer who is hired to assassinate criminals, or the television show Dexter, about an obsessive compulsive serial killer who rationally slays the scum of the earth. Professionals not only exhibit the collected disposition of homo economicus, they are also good at their job and represent the top of their field. Calling someone a professional is a huge compliment. On the other hand, establishing a profession or developing professional standards is a much different enterprise.
Professional development includes creating codes of conduct, ethics, and by-laws; it involves creating boundaries to differentiate your group of people from other “professional” groups. In essence, it is an adult form of “marking one’s territory” to decide who gets to play and who doesn’t. Creating professional standards is a form of gate-keeping that regulates occupational practices, affecting how people think and what people say. Now that we know the difference between acting as a professional and trying to develop a profession, I will focus more on two different approaches to mediating professionally.
We will call the first style Disengaged Detachment. Picture this: a calm mediator collecting her thoughts as one of her disputants blows a gasket over the horrors of standard visitation and guideline child support. As the disputant grows angrier, the mediator grows calmer, negating the expression, “Do as I say and not as I do.” As she shows the disputant how to act and the disputant begins to calm down, the mediator simply says, “Are you finished, and can we move on?” This disengaged detachment allows our mediator to stay focused on the issues and not get drawn into an emotional roller coaster. Throughout my dissertation project, when mediators and attorneys refer to acting professionally, they often mean detaching oneself from emerging emotions by creating an invisible barrier between the mediator and the disputants, which can be an effective strategy. However, if we remain completely detached during mediation we will probably not be very successful. Being too calm leads to the perception of disinterest.
We all know that effective mediators must build some type of rapport with the disputants, and one way to cultivate this effect is through Empathic Alignment. Empathic alignment is a recognition of another’s position in the world; it is saying, “I understand where you are coming from and how difficult this must be.” Empathic individuals try to align their emotions and thoughts with how the disputants must be feeling; it is trying, however briefly, to see the world from another’s perspective. It is not feeling sorry, or showing sympathy, for the parties. Sympathy suggests that the disputants are not in control of their actions and often leads to a dependency mentality.
We must overcome the false dualism between acting detached and professional or developing a trusting relationship (however brief) with parties through empathy and rapport building, because they are both necessary components of the mediation process.
Problem Solving: Active and Passive
At its core, mediation is nothing more than creative problem solving. Mediators should facilitate a conversation where two people with entrenched, often contradictory positions can explore new options for circumventing their dilemma. However, this is difficult to gauge because you don’t want to create the impression that you are favoring one side over another. In training sessions we focus most of our time on teaching new mediators how to brainstorm effectively, and it goes something like this: emphasize the quantity of ideas over quality; don’t judge each other’s ideas; set a time limit; and stay focused on your end goal. Now this makes sense when we are teaching these ideas in training, but in practice, problem solving never unfolds like this. Problem solving is messy, tense, complicated, frustrating, and time consuming—it usually represents more of Frame Breaking than genuine brainstorming. Frame breaking is a way of helping people recognize that the world can be seen, and lived, from multiple vantage points. It is a way of helping them out of their entrenched positions.
Many mediators feel uneasy, especially when they are new to the practice, about offering too many suggestions or asking too many questions to help disputants break their frames. Adopting a passive perspective during mediation can both enable and constrain the situation. For instance, if the parties and their attorneys are breezing through negotiations, it is better to serve as a passive diplomat, cordially carrying information between the two parties and facilitating dialogue if needed. Passively shuttling information back and forth between parties definitely creates the perception of neutrality. However, passive neutrality is not the only type of problem solving available or appropriate for mediators.
Because most mediations do not run as smoothly as the passive diplomacy model, a more active approach is often necessary. Benjamin (2010) says that during difficult mediations, it is not a mediator’s passive neutrality that leads to settlement but rather their “active and tenacious involvement with all parties.” Although I agree with Benjamin’s notion that acting too impartial will neutralize mediators out of business, I suggest that his active form of problem solving and reality checking is simply another form of neutrality that is situationally based. Situations arise that call for less involved mediation while others necessitate vigorous participation, the type that entails visible emotions, forceful body language, direct questioning, and clear reality checking. Attentive mediators should recognize that both passive and active forms of problem solving can be used during the same mediation. An excellent question to use to determine how involved the parties want you to be is, “I can be a passive or proactive problem solver during this dispute, what would you like me to do?” Or, “Would you like to know what I think?” We need to remind ourselves as much as the disputants that there are multiple ways to achieve neutrality, and that sitting back, calmly assessing an explosive situation can often undermine the perception of neutrality.
Art of Questioning: Authoritative and Democratic
We teach new mediators not to cross examine disputants by constantly reminding them that mediation is not the court room. And yet, many times we need to use direct questioning to elicit important information to move the mediation forward. The art of questioning can only improve as one continues to hone the craft, discovering new ways to offer statements and ideas in the form of questions. This skill, Socratic Probing, provides participants with a form of power, because they feel that they are the ones coming up with solutions and moving the process along. That is what we want, because the best mediators make themselves invisible during the process so the parties ask themselves at the conclusion, “How did we get here so fast?”
Mediators can rely on their past mediation experiences to help parties understand what is typical, realistic, creative, and unacceptable. In other words, mediators must (1) work the process and (2) set the environment, and the way to accomplish this is through questioning. This is easier said than done, because there is no rulebook outlining when to ask different types of questions; it is more of a gut feeling. There are really two types of questions: ones that create an authoritative situation suggesting that the mediator is in control and ones that create a democratic situation involving a multi-party discussion. It is necessary to master both types of questions.
Authoritative questions resemble a form of cross examination. I am not advocating that we put pressure on disputants to divulge personal information that would make them feel uncomfortable, but I am suggesting that direct questions are sometimes necessary. For instance, during disputes involving insurance claims, mediators must ask investigative questions to determine what happened, who was around, when the incident occurred, and any other relevant narrative details. These questions are directed to one person at a time to establish a specific chronology of events. In my experience, authoritative questioning is used more often in civil cases than family cases, but I have seen them used in both.
The democratic questions, on the other hand, aim to include multiple people in the conversation. The mediator should pay attention to the body language of the parties not speaking to look for cues to invite them into the conversation. For example, when one party states a dollar amount for child support and the other disputant leans back and folds his arms, the mediator might say, “Are you not happy with that number? Tell me what you are thinking.” This simple invitation creates an opportunity for the parties to begin to speak to one another. As the conversation unfolds, the mediator can insert Socratic probes to guide the conversation in a specific direction, such as, “Well, I see that you both disagree on the number for child support, so why don’t we discuss visitation?” Two things can now occur: they will agree with you and try to discuss another issue or they will want to focus on child support more, which would perhaps signal an excellent opportunity for caucus.
Overall, there are hundreds of categories of questions mediators can use but they basically boil down to accomplishing two things: (1) acting authoritatively by setting the environment or (2) creating democratic participation between the parties. You can use questions to not only elicit information, guide disputants in specific directions, and offer disguised statements and ideas, but also as an indicator of when to caucus to further probe specific issues.
To improve the efficacy of our field, we must shift from dichotomous (i.e., either/or, dualistic) thinking, talking, and training to holistic thinking and speaking (i.e., both/and, dialectical). The best mediators are masters of extemporaneous speaking. They think on their feet, adapt to unforeseen circumstances, involve everyone in the conversation, and work within a flexible structure. Effective mediators are excellent public speakers because they have a clear purpose behind their communication and they emphasize the needs of their audience. They do not get bogged down by emotional outbursts, complex issues, or difficult terminology. Mastering extemporaneous speaking only comes with practice. Mediators should recognize that the dualisms they see in training, (1) detached/empathic professionalism, (2) passive/active problem solving, and (3) authoritative/democratic questioning, are actually two sides of the same coin. We must use both sides of that coin, reflect on them, and share the challenges you face with others. As we continue to refine our shared repertoires and create mutual engagement within our field, we will hopefully see an increase in “good people speaking well.”
In April 2017, the California Supreme Court unanimously held in the case of McGill v. Citibank NA that an arbitration agreement waiving the right to public injunctive relief in any...By Peter Huang
Originally posted by the ADR Institute of Alberta. Why is collaboration so important in today’s world? The main reason is that the problems we have to solve today are more...By Robyn Jacobsen
International Center for Cooperation and Conflict Resolution It is a fact of life that lawyers will be involved in many mediations, particularly where they involve litigation matters. Despite initial reluctance...By Nadja Alexander