Moscow Rules & Me (Web)

This is the 13th installment of The Master Mediator, a periodic CPR web column featuring commentary by Robert A. Creo that describes and discusses mediation room techniques and practice issues.
 

Moscow Rules & Me
 
During a recent trip in Washington, D.C., with my wife and 13-year-old-son, we had delightful visits to the newly re-opened National Portrait Gallery, and the nearby International Spy Museum. At the obligatory gift shop, which bars direct exit from any museum, I happened upon a postcard of the Moscow Rules. The address portion of the card states:

During the Cold War, Western spies operating in the East were greatly outnumbered by Soviet and Stasi [East German] agents. They survived by following the Moscow Rules.

This got me to thinking about a comparison of spies and mediators. Both work mostly alone and rely substantially upon being able to quickly assess complex dynamics. A quick listing of some of the similarities:

            1. Reliance upon information from advocates–that is, agents--who are not allies yet are seeking to make the mediator an instrumentality of their
                interests and positions.
            2. Substantial campaigns of misinformation are common.
            3. Interpretation of intent and true meaning relies upon reading of much more than content of words. Body language, positioning of people, facial
                reactions, order and manner of participants speaking, what people do not say, and a host of other “tells” are critical to success.
            4. Reliance upon “confidential” information or misinformation.
            5. Each case is a separate and distinct assignment, but there often are repeat players or patterns involved over many cases.
            6. You’re only as good as your last assignment.
            7. You should always be better for the next assignment than the last one.
            8. Preparation is critical.
            9. Mistakes can be made that result in “capital punishment”-- no future cases, or other exile from areas.
            10. There exists a shadowy world of communication beyond reach. For mediators it is word of mouth, databases and list servs.
            11. There are multiple participants with adverse agendas manipulating information, process, procedure, and engaging in tactics designed to win the
                  “cold war” of litigation.
            12. There are double agendas and Trojan Horses in each camp with their own agendas. Lawyers, like professional spies, have little loyalty beyond the
                   particular client and assignments.
            13. It is difficult to define a “win” or a “loss” for any particular outcome in the short term.
            14. Participants always face greater risk and uncertainty in the future than in the moment of decision-making of mediation.
            15. Improvisation is key to success.
            16. Although both undergo extensive classroom training, including simulations, the craft is learned in the field via experience.
            17. You do not work every day, but when working it requires maximum concentration and devotion to duty. Mediators never know what future
                   assignments, if any, are on the horizon. “Master Mediators” travel long distances at a moment’s notice.
            18. In the age of electronic communications, mediators are now always wired for action.
            19. Mediators come in all shapes, sizes, ages, and with diverse backgrounds.
            20. Daily operation is in a world of high stakes, compromised humanity, pain and suffering and risk

Although mediators do not have physical gadgets to extricate themselves from a difficult situation, we do have our virtual toolboxes. These are sophisticated techniques and “moves” mediators learn by training, via sharing with colleagues, and in the field.

Mediators evolve their own set of heuristics to effectively address unique cases. Every case assignment is unique.

The Moscow Rules evolved to guide spies when confronting the uncertainties of working in the field on assignments. These are articulated--from my handy postcard--as follows:

1. Assume nothing.
2. Never go against your gut.
3. Everyone is potentially under opposition control.
4. Don’t look back; you are never completely alone.
5. Go with the flow, blend in.
6. Vary your pattern and stay within your cover.
7. Lull them into a sense of complacency.
8. Don’t harass the opposition.
9. Pick the time and place for action.
10. Keep your options open.

And as applied to mediation:

1. Assume nothing: The mantra of mediators.
2. Never go against your gut: Master Mediators process information quickly and act intuitively. Although we do not often immediately know what to do, we know what NOT to do. There is substantial research and dialogue on rapid-recognition and unconscious decision-making.
3. Everyone is potentially under opposition control: Mediators must operate in a paradox--- Trust everyone but no one. All are allies to the process, providing they perceive it is fair and meets or furthers their own interests.
4. Don’t look back; you are never completely alone: That’s for sure!
5. Go with the flow, blend in: Mediation is fluid and flexible. Mediators must enter the current of conflict and move with it to channel it constructively to appropriate deltas.
6. Vary your pattern and stay within your cover: Mediators acting mechanically or by formula will be gamed by the parties. Master Mediators act spontaneously while operating under the cover of consent and self-determination.
7. Lull them into a sense of complacency: Mediators create environments conducive to transformation. Master Mediators legitimize positions (such as, for example, complacency) prior to disrupting and challenging them.
8. Don’t harass the opposition: Confrontational tactics rarely work. Master Mediators are rarely seen as opposition. Bullying and threatening tactics are usually counterproductive.
9. Pick the time and place for action: Timing is almost everything in mediation. Participants, usually lawyers and insurance representatives, are impatient to “get to the numbers” and find out “where the other side is” early in the process. Each interaction during the mediation process sets the stage for finality. Serve no proposal before its time.
10. Keep your options open: Master Mediators integrate this not only into the case assignments, but their business models and lifestyles.
Invoking the greatest spy of all time, James Bond, I say mediators like their process, “Shaken, not stirred!”

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. His new book, a two-volume, loose-leaf ADR reference, titled “Alternative Dispute Resolution: Law, Procedure and Commentary for the Pennsylvania Practitioner,” is available via publisher George T. Bisel Co. at www.bisel.com. He can be reached at robertacreo@cs.com.