‘A struggle in a locked, dark basement, between a homicidal sex crazed monkey and a puritanical old maid; being mediated by a timid accountant.’
That is how one wit described Sigmund Freud’s analysis of the human psyche into the life instinct, Eros, and the death instinct, Thanatos. It seems these opposing parties retained counsel to represent them. Eros chose Super Ego and Thanatos retained Id. Presumably by court order, these two brought in a mediator, and it seems this is one of those mediations that last a lifetime; but for the court-mandated lifetime pro bono policy, the fees would be enormous.
Super Ego is sugar and spice and all things nice, the voice of conscience, cooperation and getting everyone’s needs satisfied. Id is slugs and snails and puppy dogs’ tails, hedonistic, narcissistic and addicted to zero-sum games. One might think it is no contest, yet Super Ego is quite persistent and has some tricks up its sleeve – it specializes in shame, blame and regret.
And who is the lucky mediator? Apparently it is Ego, pig in the middle and so-called ‘timid accountant,’ for who believes Ego is truly strong enough to mediate between the powerful energies of Eros and Thanatos?
Super Ego may be the source of peace, justice and the American way, yet as a standalone seems just too prissy. Id, though a source of fascination, seems little better than a thug. If Id wins, we get a Frankenstein monster. If Super Ego wins, we get sitting in one place with a beatific smile, gazing on vacancy.
Why not dispense with the mediator altogether? Eliminate Ego, and let Super Ego and Id negotiate on the phone. But wait, not so fast. Maybe dispensing with the mediator (whose fees are very reasonable) is not such a great idea. We find out what we get when Id and Super Ego are left to duke it out without the mediating influence of Ego. We get ‘Dr. Jekyll and Mr. Hyde,’ quite a bad business. Carl Jung had a soft spot for the Id, though he wasn’t prepared to use Freud’s terminology. He developed his own theory of the dark side, regarding it as that part of human nature from which we derive much of our drive: ‘To confront a person with his own shadow is to show him his own light.’ He admired anyone who would take on shadow work: ‘Such a man knows that whatever is wrong in the world is in himself, and if he only learns to deal with his own shadow he has done something real for the world.’ According to novelist Louise Erdrich: ‘Each of us has an original, you see, living somewhere underneath the shadow of our daily life. That life we live in the moving world is the dream life of the copy.’
Whether we go with Freud’s or Jung’s terminology, we can recognize that a balance is required, and elimination of Ego (the goal of some religious practices) is not such a great idea. Ego is not just a luxury item, and the ‘timid accountant’ may turn out to be neither timid nor an accountant, but Ego the mediator trained in techniques of communication, control and the ability to create change, patient and persistent, alive with creative solutions, at turns firm and yielding, transparent and opaque, adept at turning impasse into opportunity, searcher for hidden interests, tap-turner of emotions, bestower of empathy, and a masterly closer. Do you recognize that person?
We observe during mediation that each party is indeed negotiating with herself or himself, inching towards reality. For some, the initial problem is showing up at all. They may be in the room but nothing is happening; one gets the impression that they have arrived with a kind of cloudy expectation that the opponent will do everything. That is why the process of mediation divides into convening, opening, communicating, negotiating and closure. The party who hasn’t truly ‘shown up’ may reveal his/her absence by insisting on immediate closure, or presenting a ‘bottom line’ in the first five minutes. The skill of the mediator is to have enough control to be able to start at the beginning, remembering the greatness of Groucho Marx: ‘Eighty percent of success is showing up.’
Plaintiffs are stuck in the part of the ‘shadow’ that deals with dreams and illusions. The struggle for plaintiffs is to let go of inflated expectation. Defendants are stuck in extreme reluctance to part with money for something they don’t really want, which is the plaintiff’s injury. That is why the language of settlement agreements nearly always specifically denies liability and asserts the defendant is merely ‘buying peace,’ and why defendants insist they have been injured merely by being forced to defend, which is sometimes true.
What factors promote illusion? They include the party’s own desires as to outcome, motivations for tangling with the other party, and personal perceptions of the precipitating incident and the course of the subsequent dispute. Further, the phenomena of projection, selective perception and framing all cloud perception.
Each party must engage in a struggle to recognize the reality of the situation. The bottom line reality is that the plaintiff must take less and the defendant must pay more. As this happens in every mediation, one is bound to wonder what forces prevent the parties from realizing at nine in the morning what they will generally accept at five in the afternoon. If we accept Freud’s metaphor, the forces of Eros and Thanatos are battling it out in the presence of the mediating Ego, or if we prefer Jung, we will view it in terms of casting light on the Shadow. What does the Ego do, the pig in the middle? If a wise mediator, she follows Camus’ advice: ‘Don’t just do something, stand there,’ because the corollary of ‘showing up’ is ‘being there’ and the corollary of ‘being there’ is ‘staying there.’ The dynamics require sustained handling, for although the mediator is the ‘ego’ of the parties’ dispute, mediating what to her is an objective drama, she also has a superego of her own proffering advice and dispensing blame, shame and regret, and her own id waiting in the shadows with a wrecking ball. It may not be rocket science, but it does take quite a bit of doing.
When mandatory mediation was introduced in Ontario 27 years ago it was heralded as visionary as it offered many necessary benefits that could not be accommodated at the time, particularly...By Bruce Ally