What a mediator aims to accomplish in the mediation impacts how the mediator acts and how parties experience the mediation. A recent mediation I did in Summary Process court, where I mediate weekly as part of my community development corporation’s mission to stabilize housing for low-income households, illustrated the impact my goals have on parties and specifically on their self-determination. I consider myself a facilitative mediator, meaning the power to make decisions rests with the parties alone. Facilitative mediation is all about self-determination: empowering parties to take control of the resolution to their conflict by ensuring they make the decisions about how—or whether—to move forward. Thus ultimately, parties’ definitions of success and their goals for the mediation matter most; yet no matter how facilitative a mediator is, their words, actions, and motivations inevitably take the mediation in a certain direction. Even though I am not in the mediation room to make decisions, and in my situation, am a young, non-lawyer woman, a party still attributes some moral power to me and follows my lead of the process.
In addition to operating from a facilitative orientation, I tend to consider my problem definition to be broad: Rather than only resolving the situation in front of me, I want parties to understand themselves and each other, to cooperate with each other in a constructive way moving forward, and to find peace beyond their immediate conflict. Ideally, I would like conflict resolution between individuals to contribute to healing and restoration between whole communities. My facilitative-broad orientation is one quadrant Leonard Riskin (1996) examined when he overlaid the facilitative-evaluative role of mediator continuum with the narrow-broad problem definition continuum (see image below). This orientation impacts the goals I have in the mediation room and the decisions I make as I facilitate parties’ conversations.
While both of Riskin’s continua relate to a mediator’s goals, I want to focus on the goals informed by a mediator’s problem definition: If mediators have a narrow problem definition, they aim to resolve the problem in front of them; if broad, they aim to resolve bigger issues via the problem in front of them. In addition to the narrow to broad goals, mediators’ goals are informed by how much priority they put on settling the case. A mediator who puts low priority on settling the case may have other goals in the mediation, such as effective communication, mutual understanding, or relationship restoration. A mediator who puts high priority on settling the case may see these goals as secondary or even unnecessary when trying to get parties to sign a mediated agreement. The priority to settle a mediation can come from many places: High settlement rates can be a personal reputational goal, an organizational aspiration, or a standard by which mediators are judged and evaluated. How eager mediators are to settle a case certainly impacts the parties’ experiences in the room.
To examine mediators’ goals more deeply, I have overlaid the “Priority to Settle” continuum on Riskin’s “Problem Definition” continuum reflecting the following tendencies: Mediators who prioritize settling tend to define the problem more narrowly (Quadrant 1 on the chart below), and vice versa; Mediators to whom settling is a secondary concern will have the bandwidth to seek expansive solutions to a broad problem (Quadrant 3). It is of course possible, but arguably not as common, that broad-defining mediators could place high priority on settling the case (Quadrant 2), and narrow-defining mediators could place low priority on settling (Quadrant 4). Quadrant 1, the efficient resolution orientation, is a common orientation for mediation that occurs on the day of court because of the time limitations. In court, a mediator does not have the luxury to schedule multiple sessions and explore the broad issues underlying what is being litigated. In Quadrant 3, the conflict exploration orientation, a mediator can focus on restoring the relationship or reconciling communities and use these to resolve the issue in front of them.
As I grow in my mediation experience, I have come to find that Quadrant 3 mediation, where the mediator defines the problem broadly and makes settling the case a low priority, is a luxury. This was my orientation when I finished training and first mediated in district court in Brookline, MA. Back then, mediation was still more an academic exercise for me than a practical way for people to resolve their conflicts. In my academic bliss, my goals were to ensure that parties felt heard and give them a chance to ask each other questions to reach mutual understanding. My mediation training had a whole module about defining success in mediation, and trainers encouraged us not to make settling cases our primary concern. I embraced these ideas because I was attracted to mediation to—like most of us at one point—bring understanding, peace, and reconciliation to the world.
Yet after a few years of experience and moving into a mediation job (instead of a volunteer position), I realized how unrealistic this orientation can be for in-court mediators. I can say I want the parties to understand each other and hear each other, but I also have to either get an agreement or send the parties back to court. My problem definition is significantly narrowed by the judge or magistrate waiting to hear if they need to rule on the case I am mediating. Furthermore, I work for a nonprofit that receives grants for mediation, and our funders ask us to disclose our settlement rate. It is not just about how many cases we get, but how many cases we get that those judges and magistrates do not have to rule on. If parties work with us and move toward mutual understanding, but the court’s caseload remains the same, we as mediators might feel good about the peace we are bringing to the world. However, in the eyes of the court, we are not accomplishing anything. Fewer cases settled means less funding, which means less opportunity to do the work.
With these pressures, and my inescapable ambition to have a reputation as a “good” mediator, I find myself narrowing my problem definition and placing high priority on settling cases when I am mediating in court. However, a recent experience in Summary Process court illustrated how prioritizing settlement impacts parties’ self-determination. I was mediating a case that seemed unlikely if not impossible to resolve. A landlord was in court to evict her cousin, who was taking care of the landlord’s elderly and severely disabled mother, the tenant’s aunt. While unpaid rent was ostensibly the issue, when we sat down, years of family baggage poured out of the parties, and it was revealed that this group had a case pending in probate court as well. Underlying anger and resentment seethed as parties hurled years of offenses at each other, and I could not imagine how the issue was going to resolve. It took a while for the landlord to admit she was essentially evicting her elderly mom and the woman taking care of her. In a private caucus, meant to give the landlord the chance to vent her frustration without undermining the mediation, the landlord suggested a resolution, and I promised to bring it to the tenant. To my surprise, the tenant responded, “Well, that might be able to work.” “Great!” was my immediate and inappropriately enthusiastic reply. We all came back together to finalize the details, and both parties signed the agreement. It was a one-word response, but I imagine my body language and tone of voice also shifted from a professional who expected to fail to one who was going to achieve an unexpected success.
It was only when I was on my commute home that I wondered how my enthusiasm about this seemingly impossible settlement impacted the tenant’s decision making. I have undoubtedly committed more obvious breaches of mediation’s core principles in my practice, but it is the insidious blunders—the ones that might slip by even the most seasoned observer—that do the most lasting damage to parties. By taking care of her elderly aunt, this tenant believed she was doing her cousin the ultimate favor and in return was being kicked out of her home. In addition, her elderly aunt was going to be moving with her, so her housing search was now complicated by the need for a wheelchair-accessible unit. With all of this going on, was she ready to agree to the proposed solution, or did my enthusiasm pressure her into signing? I also wondered if I met any of my other goals in this mediation. Did the parties leave court feeling like the other party understood them more? Did they feel like the resolution would bring peace to their family? Did the mediation allow them to cooperate better in the future? I was able to count the case as settled for my weekly numbers, but I will never know the answers to these questions. This case made me reexamine what goals I am allowing to take precedence over others, and more importantly, how those goals influence what happens in the mediation room.
Rather than advocating that mediators replace all practical and settlement-oriented goals with community- and peace-oriented aspirations, I think we as mediators should simply expand our scope and not let the pressures of funding and reputation mask the fact that we are sitting with human beings who have to live with whatever comes out of this room. Ensuring that we are not seeking an agreement only for the sake of an agreement can enhance parties’ satisfaction with the outcome, their compliance with the agreement they sign, and their willingness to try mediation again or recommend it to others. The remarkable thing about mediation is that self-determination, mutual understanding, future cooperation, and peace can result even when the mediator is only focused on getting an agreement; yet when the mediator prioritizes these elements, the healing parties seek is even more likely.
Riskin, L. “Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed.” Harvard Negotiation Law Review 1:7 (1996).
This article originally appeared in the ADR Supplement of the Philadelphia Legal Intelligencer. Reprinted with permission from the January 19, 2016 edition of the Legal Intelligencer © 2016 ALM Media...By Stephanie Klein