The Master Mediator, First in a Series (Web)
July 2, 2008First installment of Master Mediator Column
"Out beyond ideas of wrongdoing and rightdoing there is a field. I shall meet you there." Rumi
I am fond of almost quoting sometimes well-known people. I say “almost” since I rarely get the exact wording of the phrase right due to poor memory or when I purposely spin the quote. They are mostly deceased so are unable to protest being misquoted.
The quote by 13th Century Middle Eastern poet, Jelaluddin Rumi--certainly dead and buried in Konya, Turkey—is popular among members of the dispute resolution community. At least one mediator I know has it printed on the back of his business card.
My hope for this column is to stimulate and challenge the conventional mediation wisdom and to get people thinking and talking on Rumi ground. This is the first of periodic commentary to be published exclusively in Members Only via the CPR home page.
Mediator as a Carpet
In many ways mediators, even the most effective ones, are like well-worn carpets. You can easily see the wear patterns from the walking paths. All of us are creatures of experience and, like Mark Twain’s cat, after sitting on the hot stove once, we avoid both the hot, and the cold, stoves. The literature and talk at conferences notes, “I did that once and will never do it again” a commonplace refrain:
We meet this resistance daily in our personal and professional lives. All mediators have heard this during negotiations to resolve a claim, and it’s a typical refrain between clients and lawyers. No one threads easily on the outlaying weaves. This resistance limits the flexibility inherent in the concept of mediation. This is usually conscious but may be unintentional if no one has been invited to wander.
Invitation & Thesis
The talking point of this column can be stated as follows:
Participants have to resist the anchor of the words “always” and “never” for mediation to reach its full potential.
This invitation is addressed to parties, advocates and especially mediators.
The more I practice, the less confident I am of process certainties. The more I comprehend the process the more reluctant I am to define it. Like nature, mediation is a complex adaptive system. It is a part of the legal system and liberal democracy which is the key pillar of capitalism. As a method of dispute resolution, it is an alternative to adjudicatory models but still only one possible stopping pointon a Rule of Law continuum. Mediation is a process sanctioned by the legal system but ultimately beholden to its strengths and weaknesses. Legal claims exiting mediation unresolved have another end-day.
This is the context of our work as mediators and advocates for claims able to be filed in court.
Since there is another time and place for legal claims, mediation allows experimentation and creativity. Mediation, as a healing art, is designed to do no harm. The structure of the process, with an emphasis on communication, confidentiality and the objectivity of the mediator, ferments the environment conducive for shedding old ways of behavior. We need not lapse into customary patterns to cure common ills.
Whoa, not so fast!
I know, I can practically see the boys and girls in the back of room waving their arms for recognition. “I disagree. If I do X, then I have given up strategic information for trial, or set a new level when I get in front of the judge, or my client will think I am weak.” And so forth. Sure. But as my friend, prominent mediator and CPR supporter, Bennett G. Picker, a partner in Philadelphia’s Stradley, Ronon,Stevens & Young, opines there is a best, single, word for mediation: opportunity.
Each and every opportunity is dressed in not only hope, but risk. Risk is uncertainty. By confronting uncertainty with “always or never” attitudes or actions, opportunity may be lost. The Basque people have a heuristic, often translated as follows:
1) Show-up &
2) Pay attention &
3) Speak the truth &
4) Be open, and not attached, to outcome.
This is good advice for mediators, lawyers and clients.
What does this mean to you as a practitioner?
To get the most from mediation, advocates must recognize they are in an alternative process with unique dynamics. There is no roadmap. As the process unfolds, the map is created by the participants, including the mediator as cartographer. There are twists and turns, switchbacks, barriers and lots of false starts and wrong turns. Weather conditions vary. Different conventions may apply in different places.
To support my thesis, here’s a tale from the field. For years I followed the model of “always” starting by convening all participants in a joint session on the day of the mediation. To do otherwise might affect perceptions of impartiality and balance. Following some discussions with colleagues at the International Academy of Mediators conferences (see www.iamed.org), I reconsidered this tenet. I usually, but not “always” begin by meeting privately with each party. I stagger their time of arrival so I can spend five to 20 minutes alone with each side. I do this for many reasons—which will be addressed in this space soon.....
See you at the field.by Robert A. Creo
The author is a Pittsburgh mediator who heads the Law Offices of Robert A. Creo, also represents parties in alternative dispute resolution and designs conflict resolution systems. He is a Founding Member of the International Academy of Mediators, discussed in this column, and served as its president between 1997 and 1999. He can be reached at firstname.lastname@example.org.