The Master Mediator, Tenth Installment by Robert A. Creo (Web)

This is the tenth installment of The Master Mediator, a periodic CPR web column featuring commentary by Robert A. Creo, describing and discussing mediation room techniques and practice issues.

MEDIATION MAGIC MOMENTS

All veteran practitioners have had what I call Magic Moments–that is, transcending experiences--in mediation.

Some of my recent examples are medical malpractice claims. Examples include
 
–the defendant physician and defense counsel hugging the mother of a severely cognitive-impaired baby at the time of settlement. 

–a physician making an apology after settlement.

–a defense adjuster saying to a female high-earning claimant after settlement how much she respects her as being a strong role model and leader for women. This was done authentically and transparently because she did not want to say it during the process for fear if would seem insincere or manipulative.

–a claimant and an adjuster going outside by themselves for a smoke, and bridging the final gap in the numbers. This was initiated by the young claimant--not me or counsel.

THREATS TO AND OF THE MOMENT

The regulation of what we do in the sessions, or how we manage the process under misguided concepts of protecting consumers and the trend of legalizing or institutionalizing practice, is a serious erosion of mediation as an alternative process. Borrowing core values of lawyers and the legal system, and carrying them wholesale into the mediation process is inappropriate.

Annexation of mediation to the judicial system, which suppresses the parties’ ability to engage in a self-determined process, is harmful.

It is becoming more common for sitting judges to serve as mediators for cases on their own dockets, or for cases in other courts. This is not good. This takes the process right back into the adjudicatory modes and the environment, the interconnectedness of it all–social science’s Field Theory, detailed in Master Mediator, December 2005, Column 6, available via the archive at the top of this page–changes the process and the expectations of the parties. It affects directly or indirectly what we do.

Codes and rules that are more than aspirational are of questionable worth. Formal complaint and grievance mechanisms tend to create a body of precedent. These encourage uniformity--and a reduction of creativity and risk taking by mediators.

Regulation and the institutionalization of mediation promote an orthodoxy of practice and stunts the evolution of positive developments in the field.

I can envision a complaint being filed against me for crying in an opening statement of a mediation based upon my not conducting the process in an impartial manner. That should make all of you cry. 

By Robert A. Creo
The author, a Pittsburgh attorney, is a mediator and arbitrator. He also represents parties in alternative dispute resolution and designs conflict resolution systems. He is a founding member of the International Academy of Mediators (see www.iamed.org), and served as its president between 1997 and 1999. He also is a member of Alternatives’ editorial board. He can be reached at robertacreo@cs.com.