The Master Mediator, Second Installment, Mediation Theory and Practice (Web)
July 1, 2008The paradigm for addressing legal problems is a rational, analytical approach. This Cartesian methodology mimics the scientific model by claiming an outcome can be determined objectively by applying law to the facts.
Mediators intervene to take the legal dispute and help translate it back to a human problem because there are more possible solutions to human problems than legal disputes. The mediation process is intuitive and grounded in the mediator’s flexibility. Robert D. Benjamin, a Portland, Ore., mediator and educator, calls this “systemic intuition.”
Substantive knowledge is not as important to the skilled mediator; Lowry acknowledges settling many cases where he really did not understand the underlying facts, issues or conflict. Process skills trump substantive knowledge.
I, too, confess that I have nodded knowingly during many a presentation of advocates when I was next to clueless about the science, facts or legal platform of the dispute. I have mediated successfully dozens of medical malpractice claims where I am unable to even pronounce most of the medical terms and conditions.
Nevertheless, we mediators are better equipped than jurors or judges to address these complex disputes. Why is that so?
Most ADR practitioners have heard the mediator’s role often framed as being a channel, a catalyst, or a vehicle for transformation of the disputants. The mediator removes strategic barriers or otherwise facilitates uncovering the existing common ground between the parties. The mediator is not only a facilitator, but also functions as an explorer, a devil’s advocate, a trickster, a chameleon, an active listener, an explainer and an all-round-good person!
Sometimes mediators offer opinions and are evaluative or directive. Despite the controversy over evaluation in some quarters of the mediation community, it plays an invaluable role in moving parties forward to resolution. The reality is that all mediators start processing and evaluating from the moment they are retained until well after the case is at impasse or resolved. We differ in our practices about what, if anything, we do on a transparent level about our evaluations. This reflective thinking, interacting with our “intuition,” guides our mediation moves.
There is an inherent tension between evaluative mediation practice and traditional concepts of impartiality and neutrality. This has been beaten to death throughout the profession, but in dismissing the debate, here are a few missives: Parties may self-determine the level of activism they want from the mediator. This is the function or effect of a free market where people can hire their own mediators and task them accordingly. If they want a mediator to call balls and strikes like an umpire, so be it. No one would claim that an umpire has lost impartiality by doing his or her job of objectively making calls.
In mediation, these calls may influence the parties and the ultimate outcome, but they are still advisory and nonbinding.
Thinking back to all the roles of mediator, at times, I am all of the above and none of them. Most of all I am human. Successful mediators may use their own humanity to assist the translation of a legal problem into a human one. We engage the parties. We are sympathetic and empathetic.
My basic thesis is that the most successful mediators possess a persona emanating humanity to the participants in the process.
The process gives permission for not only the mediator, but also the participants, to humanize the conflict. The process gives permission for a host of dynamics absent from adjudication. Creativity, acknowledgment, recognition, apology, forgiveness, and choice work in the context of the interplay between uncertainty, risk, emotion, personal and community values. People make important choices in a holistic manner during an asymmetrical mediation process.
Mediation recognizes the tension between the rigors of reason and insight and perception,
and in practice rejects classical notions of the dualism of emotion and logic that underpin legal analysis. Emotion and logic are not binary--nor are they incompatible. One legal fiction driving the public persona of the courts is the notion that justice is rational. Jurors are instructed not to let sympathy or emotion dictate the result, but everyone hopes for the opposite happening in their particular case.
In reality, jurors act in a communal and holistic manner. Indeed, the foundation of the jury system is the concept that jurors are peers of those they judge and jurors impose societal values. They vote on their insights, their personal and communal values and their experiences, cloaked in the rhetoric of analysis as compartmentalized by jury verdict forms. Often the question for a juror boils down to: Does the plaintiff deserve compensation and/or does the defendant need to pay something as punishment?
by Robert A. Creo, 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 can be reached at email@example.com. This column features material that the author prepared for the Mediation and Arbitration Professional Systems Inc. Advanced Mediator Training session in New Orleans in April, and material he plans to incorporate into keynote speeches at the September 2005 meeting of the Michigan State Bar Association ADR Section, and the October 2005 Minnesota State Bar Association ADR Institute.
Prof. L. Randolph Lowry, who is director of the Straus Institute for Dispute Resolution at Pepperdine University School of Law, in Malibu, Calif., articulates mediation theory and practice in a manner that resonates with the experienced mediator. At an advanced mediator training seminar earlier this year sponsored by Mediation and Arbitration Professional Systems Inc., in New Orleans, Lowry noted that the mediator functions primarily as the mediation process manager. Conflicts start as human problems--but dispute resolution institutions make them into legal problems.