Something is in the air at the moment. And it goes to the heart of what we mediators do.

On the one hand, noted mediation thinkers such as Robert Bush and Joseph Folger write an empassioned challenge to the profession “Reclaiming Mediation’s Future: Getting Over the Intoxication of Expertise, Re-Focusing on Party Self-Determination”, arguing that mediation has shifted radically away from the party self-determination which is its essence. They maintain that the context in which many mediations take place – the court system – has over-influenced the behaviour of mediators themselves, noting that:

“We were drawn in by the culture of helping, the drug-like “high” of reaching agreements (and even “wise” agreements), the “rush” of satisfaction in cutting Gordian knots, finding creative solutions, and protecting vulnerable parties. Along the way, the theory of the “wise negotiator” penetrated the mediation field, making the problem-solver role look even more attractive. So that the subtler, finer, and ultimately higher value of party self-determination was simply overwhelmed by the intoxication of the problem-solver role”.

On top of that, my fellow Kluwer blogger and respected mediator John Sturrock writes that:

“We [mediators] help them [the parties] to rediscover humanity, to understand the other, to acknowledge and apologise, to explain, to engage, to have that conversation…Perhaps most important of all, therefore, is that those with whom we deal can, with our help, regain their autonomy, their control and their dignity”.

Again, a strong focus on self-determination.

But at the same time, another good friend and respected mediator Bill Wood notes in a recent blog an

“increasing tendency of parties (or rather their lawyers) to demand from me as the mediator more engagement with and more technical analysis of the legal issues.
Bluntly I’m being put on the spot. Recently two parties amended my mediation agreement to require me (the usual wording merely “permits” me) to express my views on the merits of their respective positions at the end of the mediation day if the case had not otherwise settled”.

If these clips reflect anything of what is going on out there – and I believe that they do – then we need to think seriously about where we find ourselves. I’m not going to delve here into the evaluative/facilitative debate (undoubtedly mediation’s most boring and misconceived “issue”), but rather to ask a different question. Who determines what mediation in general – and any given mediation in particular – is really about, and what goes on?

Here are the main runners and riders:

1. The mediators – Here, the argument goes that it is for those who mediate to decide what the essence of the process is really about. After all, if we don’t know, who else will? We are the independent ones, the neutrals, the experts in conflict. It is the mediator’s experience, skills and vision which determine what process, inputs, etc is likely to be most effective. If we say that it’s all about party self-determination, then it’s all about party self-determination. Ironically, however, if you play this out to its logical conclusion, you may get the very opposite of party self-determination.

2. The parties – They, after all, are the people whose lives and interests are front and centre. They are also those paying for the mediation. So surely they should have a large say in determining how a given mediation will run? If we disagree with what they say they want from the process, can we mediators really say that it’s not “good for them”, or just not part of the mediation process? On the other hand, what if we think they are simply too close to the problem to see clearly?

3. The parties’ advisers – these people are often (but by no means always) regular and sophisticated purchasers of mediation. They often know what they want from a mediation (process as well outcome), so why shouldn’t they get to determine much of what is involved? What if they want the kind of input Bill Wood writes about? Who are we to tell them that they can’t have it, that that is a denial of their self-determination, and not “true” mediation? And to complicate matters, let’s be honest – we mediators are naturally concerned to keep in with them, because they are the ones who hire us on (we hope) a repeat basis. Sorry folks, I’m just being straight.

4. Some “regulator” – a strange irony of the legitimisation of mediation over the last twenty to thirty years has been the growth in the desire to define and control it. A plethora of bodies abound, some essentially inside the profession (ie self-regulatory), others less so. In some countries, they exercise a considerable role in asserting what can or cannot happen in a mediation. Conceptually, I can see the regulatory argument, but sometimes it results in those with little or no grasp on mediation dictating the realities of it to those at the coalface.

From somewhere amongst all these competing forces a process has to emerge which delivers.

Mediation conferences are often full of “when I mediate, I never do X” and “I only hire mediators who do Y”. The on-the-ground reality, I suspect, is that all mediation processes are a heady mixture of what each of the different participants wants and can offer. A whole range of forces are in play. Of course mediators have an important contribution to make in determining what goes on – If you hire a mediator, why ignore their own perspective and experience on how the mediation can be most effectively run? Equally, it is not simply for mediators to dictate a process to parties and their advisers. The latter will have views, experience and demands to bring to bear. The hard part comes when those differ widely, either from the mediator’s or from each other’s.

In the end, it’s all about collaboration. Everyone has a contribution to make, everyone a different view on “wisdom”, everyone their own take on what “works”. This breadth of variety and desire to have input is not something mediators should shy away from. In working with all these to mould an effective process, we are modelling collaboration. That in itself is a fresh contribution.

So as the New Year starts, here is something to reflect on. If you are a mediator, in what specific ways do you elicit or make space for the views of others (parties and advisers) on how a mediation should go? If you are a party or adviser, in what specific ways do you seek out the mediator’s (or – more radically – your opponent’s) wisdom on what is likely to work?

Answers below, please.

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8 comments

  1. Thanks Bill: background, I’m a family mediator in Australia, mostly conflict around separation and children or elder mediation.
    I encourage option exploration on how a mediation could be managed. The primary driver is to model alternative thinking. The secondary one is to see if their is a better way. In less than 1/3 of cases I get requests for direction. Including; room arrangement, presence of other parties (partners lawyers), removing a particular topic, asking me to raise an issue and preventing triggers the other person uses. Specifically I start with “now I have described a ‘normal’ process, lets think about how we can vary that, are there any ways I can make it easier or better for you?”

  2. Bill’s excellent thought-provoking blog provides an excellent stimulus to the start of the new year!

    May I venture a tentative response? One answer lies in achieving a proper understanding of the psychological blockages that prevent prudent, cost-conscious and profit-oriented parties from reaching a commercially sensible settlement. It is rarely defensible from a business perspective for two commercial organisations to remain in dispute with each other. It depletes them of the three essential elements requisite for a profitable enterprise, namely: time, money, and energy.

    So why is it that these parties are unable to resolve their differences logically, rationally, mathematically, geometrically, geographically, or otherwise?

    Very often as mediators on reading the papers, we sense what may appear to be a glaringly obvious solution to the dispute.
    What we then need to appreciate is that if it is so glaringly obvious to us after only a few hours’ reading, it will almost certainly have been equally obvious to the parties, their legal advisers, experts, relatives and friends, who have lived with the dispute for weeks, months and perhaps years.

    The psychological blockage invariably boils down to a matter of self esteem or ego. This may be a huge over-simplification,
    but rarely do I meet cases where corporate or individual self esteem has not played the most significant role. Corporate self esteem comes in many guises: from “What kind of company do they think we are?” to “If we give in, they will be laughing all the way to the Bank”); whereas individual self-esteem will almost always involve some protection of reputation or professional integrity. Allegations of fault, whether of negligence or breach of contract, can be the most potent attacks on corporate and individual self esteem.

    An effective mediator may therefore benefit from a true appreciation of where in each mediation room the issue of self esteem is most prevalent. Whose reputation is on the line? Whose integrity is most under attack? Which person is more vulnerable
    to the allegation of culpability? Is it the party? Or the legal representative? Or is it Granny sitting in the corner of the room?

    It may be a commonplace, but nevertheless valid: once the source of the problem is established, it can more readily be addressed. So the mediator might assist the ‘strong’ party to realise that an element of magnanimity – e.g. building a Golden Bridge – may provide a significant boost to their self-esteem. Equally, the ‘weak’ party may welcome the mediator’s intervention, by relieving them of the responsibility of capitulation: “The mediator thought we had a weak case, so we had no alternative but to settle”.

    Although somewhat simplistic, I have certainly found that focusing upon self esteem (amongst other things, of course) has been most helpful to me when mediating. Perhaps others have found – or will find – it equally useful.

    A fruitful and prosperous New Year to all!

  3. Bill & Paul, I’d like to try and address Bill’s invitation directly:

    If you are a mediator, in what specific ways do you elicit or make space for the views of others (parties and advisers) on how a mediation should go?

    By way of context, I came into mediation as a gestalt psychotherapist, and have been mediating for 16 years now, with some similar questions in mind for every case: ‘Why have these people got themselves into this conflict, how did they get stuck there, and how can I set up the right conditions for them to resolve and unstick it for themselves?’

    Psychotherapy practice has many similarities (and a similar number of differences) to mediation. For example, the psychotherapist values people’s self-determination and autonomy, he/she works confidentially with people who choose to be there, and applies a tried and tested process within some strictly-held ethical and professional boundaries. Mediators too.

    Psychotherapy clients, whether individuals, couples, or groups, may have ideas for something they could try out within a session (and one great thing about the gestalt approach is the encouragement to experiment within the therapy). So they experiment with a different way of being, a different way of making sense of their situation, even a different way of talking or sitting. Provided that the experiment takes place within the agreed and held boundaries, that everyone present is in agreement with it, and that the therapist judges, yes judges, that the work is safe, therapeutic, respectful, and within the remit of what we understand as psychotherapy, then all is well.

    Nowadays, people come to me and my organisation because they want their dispute resolved. To those clients I offer mediation. I don’t offer legal advice (partly because I’m not trained or qualified to do so), nor coaching, counselling/therapy, debt advice, hatha yoga (!), or anything other than mediation. Within each mediation, and the same applies whether it is a commercial, neighbourhood, workplace, complaints, or family scenario, clients are allowed and encouraged to express views on how they think the mediation should go. All should be well here too, provided that their suggestions, 1. don’t compromise anyone’s safety, 2. are consistent with what I judge, yes judge, to be a fair negotiation process, and 3. that what we end up doing is part of what we have defined as mediation.

    So, Bill, you did say ‘specifically’……….!

    1. I will not permit to happen within mediation anything that puts a person at risk, either within or outside the session(s). This could include disclosure beyond what a person is happy with, exposure to any form of threat, or anything that puts them in a worse position than when they started

    2. A fair negotiation process means that all parties agree equally to what happens within the mediation; they all have equal time available to speak & listen, they make an equal contribution to the outcome, and they respond to my efforts to engender equal power, and

    3. What happens on the day must be consistent with mediation principles. We stay future-focussed, we are interested in a shared responsibility to improve a situation, not to attribute blame for why the situation occurred, and the mediator stays impartial: not giving advice, not making suggestions, and not commenting on the merits of anyone’s position. I steadfastly refuse to do this, even if, Bill, this will mean they don’t want to book me again.They booked a mediator and that’s what they got! Also, if there is any discussion or disagreement about how the mediation should go, as far as I am concerned, who pays the piper calls the tune. If the clients are paying their advisors to be there, then the clients can decide whether they have them wait in the room or not, whether they take their advice or not, and even whether they send them away or not.

    And with reference to your comments on blocks to settlement, Paul, I do agree with paying attention to clients’ need to preserve their self-esteem/ego. I would also add two extra blocks: for me, one of the big blocks is a lack of trust. The clients often don’t trust the process (and unfortunately, my experience is that legal advisors often don’t help with this), they don’t trust the mediator, (and in workplace disputes they don’t trust the organisation who pays the mediator), they don’t trust themselves (they worry that they will act out their conflict or embarrass themselves), and they certainly don’t trust the other party.

    A lot of mistrust comes down to projection: what people imagine others to be thinking and feeling, and this is something that I try and address head-on at an early stage. It’s not only about helping the parties to trust what is happening in the mediation and to start to trust each other’s commitment to a resolution, it’s about getting them to trust what I am there to do: to be truly impartial and non-judgemental about their positions, past and present, and to pay close attention to the process, not so much the content of their emerging resolution.

    So, within the above boundaries,which I will tightly protect, I would absolutely elicit and make space for parties’ views on how a mediation should go, with the benefit of the clients’ paid advisers’ expertise if they wish it. My proviso would be that their suggestions have to be in pursuit of a resolution (of whatever nature/quantum), which is arrived at fairly, and which, for them, meets their substantive psychological, emotional, financial and social needs, including sometimes the need to back down with their dignity intact.

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