The Master Mediator, Sixth Installment, Mediation Field Theory (Web)

This is the sixth 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.

A relatively new theory and frames of human behavior is field theory. It is a derivative of Gestalt psychology, and is closely linked to Kurt Lewin (1890-1947) and his work, “Field Theory in Social Science.”  It focuses on the object under consideration and the environment in which it is placed.

The interaction between the object and other objects in the environment is critical. This theory postulates the interconnectedness of everything in an interactive world.

Applied to economics, it is the globalization of commerce, especially the immediate exchange of information via cable and satellites. For a good layman’s perspective, read New York Times columnist Thomas L. Friedman’s “The World Is Flat: A Brief History of the Twenty-First Century” (Farrar, Straus and Giroux 2005).

Research shows that people benefit from community. Furthermore, research has shown that there is a desire for accuracy in human interaction, which enhances community and cooperation.

Mediators who enhance parties communication directly with each other in a factual manner may facilitate resolutions that enhance the sense of commonality between people.

Field theory rejects dualism and binary decision-making. One scientific phenomenon questioning dualism is the fact that particles are in two places at the same time. To the human examiner, subatomic particles can appear and disappear at will. Light is either particles or waves, depending on what you are testing for in your specific observation.

What does this mean to you as a mediator?

Mediation is a process and not an event. Unfortunately, we lawyers in our mediator training have modeled the process after adjudicatory hearing models. In the civil litigation paradigm, a series of discrete events occurs during the course of litigation.

Robert Axelrod, in his classic book, “The Evolution of Cooperation,” states that frequency of interaction builds cooperation. In lay-mediators’ terms, this translates to the action of having many interactions of shorter duration than fewer longer ones.

I have incorporated this into my own practice by scheduling meetings with lawyers and their lay-clients a few weeks in advance of the mediation session date. I do this in serious personal injury and death cases whenever possible. I go to the plaintiff counsel’s office for a 30-to-90 minute orientation where I introduce myself and explain the process. We discuss the form and content of joint session presentations. I insist on a joint session in each case, but I do not expect it to always be the mediation’s launching pad.

Inherent asymmetries in the mediation–a recurring and focus and frequent theme of these CPR Web columns--should reduce attention to concepts of neutrality and process balance in order to be effective in providing choice points, or in transforming the participants' views of each other or the dispute.

This differs from adjudication and adversarial at-law processes that focus upon symmetrical function, approach and goals. Adjudicatory paradigms and legal values should not be grafted onto an argumentation process relying heavily upon arbitraging differences between the participants. Effective mediators are creative and are able to think outside the box because they think and act asymmetrically, so the box does not even exist.

F. Scott Fitzgerald wrote in The Crack-Up (1936) that the test of a first-rate intelligence is the ability to hold two opposed ideas in the mind at the same time, and still retain the ability to function.

Likewise, effective mediators are able to act on two irreconcilable thoughts at the same time–that is, an offer to settle is firm and final and at the same time it is malleable. Additionally, mediators alternate between optimism the dispute will resolve and the reality that impasse is near.

MEDIATOR INTUITION
 
There is a growing recognition that mediators are engaged in the process on multiple levels, including a level I call the Human Mediator.

There is wonderful work being done at universities, especially by Prof. Leonard L. Riskin of the University of Missouri Law School at Columbia, Mo., on mindfulness; the Harvard Negotiation Insight Initiative led by Erica A. Fox, a lecturer at Harvard Law School, and work by Norman Fisher, and Jack Himmelstein, of the Center for Mediation in Law, which has offices in Mill Valley, Calif., and New York City, on the tension between neutrality and personal engagement.

Kenneth Cloke, in his wonderful book, “Mediating Dangerously: The Frontiers of Conflict Resolution” (Jossey-Bass 2001), touches upon some of these themes from a tactical viewpoint.

In popular culture, the work of Malcolm Gladwell, “The Tipping Point: How Little Things Can Make a Big Difference,” and “Blink: The Power of Thinking Without Thinking,” have engaged the popular culture as best sellers and radio drive-time fare.

In Blink, Gladwell uses the work of scientists, business leaders and academicians to put forth a few core theories of daily behavior. He opines that humans "thin slice" daily interactions via their own experience. We make quick judgments on little information. This is sometimes called “Rapid Recognition”--and we all know the importance of First Impressions.

So, what we often call our “Mediator Intuition” might be just an immediate processing on a subconscious level of our experiences in similar situations. The brain learns by repetition and creates neural patterns involving our synapses and other complicated stuff I can't really describe or pronounce.

One thesis is that we need 3,000 repetitions to encode a rapid response, or learning, in our neural systems. But once we encode how to ride a bike, we can do it years later instantly. When you are driving a familiar route home, you can multitask because you are on auto pilot. Many people will find that even if they had to deviate to run an errand, by not consciously override the auto pilot, they just as suddenly found themselves in their driveways.

And what does this mean to you as a mediator? Like F. Scott Fitzgerald, it means two things. We are going to go to our defaults instinctively based upon stereotypical situations. Yet we also need to have the ability to override these rapid responses. The latter often is called "reflective thinking," or the ability to step back and break typical behavior patterns. Asymmetry is good for avoiding routine responses.

We also evaluate and communicate by silence. People do this all the time, including mediators. If a party takes an unreasonable position, such as making an excessive demand, we attack it. If it is clear that a party is making reasonable offers and progress, we are silent and facilitate the negotiation dance. What we choose not to say, or when we are passive, is based upon our evaluations. The present context dictates our passivity and aggression levels.

CANDOR AND ASYMMETRY

“Jeers, Fears, Tears & Deals” is something I keep in mind when mediating.

Adversarial parties have some level of anger and hostility. At some level they want to jeer their adversaries, and especially opposing counsel. They also are afraid since uncertainty of outcome has personal and business risk. There may be strong levels of emotional investment in the dispute. Tears can be from anger, fear, pain or joy. Finally, the parties and the mediators come to the table to deal.

In managing the process and dealing the deals, mediators have a bias toward restorative rather than retributive justice. Scientific studies, however, have shown that retribution feels good. The same areas of the brain aroused by retribution are stimulated by positive rewards. We as mediators suppress retribution. We seek to make people whole and not ratify the punishment of wrongdoers. We evaluate and place our restorative values as the key, if not the only, acceptable paradigm, neutralizing the self-determinative talk if the parties seek revenge.

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 can be reached at robertacreo@cs.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 incorporated into a keynote speech at the September 2005, meeting of the Michigan State Bar Association ADR Section, as well as an October 2005, speech, at the Minnesota State Bar Association ADR Institute.