So this guy is hitchhiking, and he gets picked up by a good ol’ boy in a pickup truck. After a while the driver reaches under the seat and comes up with a mason jar. He hands it to the hitchhiker and says, “Here, drink this.”
The jar is filled with a cloudy liquid that smells like kerosene. It has little yellow flecks floating in it. The hitchhiker says, “Thanks, but, I think I’ll pass.”
The driver reaches under the seat again and comes up with a pistol. He points it at the guy’s head and says, “DRINK IT.”
The hitchhiker forces down a swallow, gasps for air, and sputters, “That’s the nastiest stuff I ever tasted.”
The driver says, “Yeah, it’s pretty bad. Now you hold the gun on me, and I’ll drink it.”
I think of that story sometimes when I’m mediating. In some cases the parties know what has to happen. They hire a mediator because they need someone to make them do it. My role in those cases is to act like the bad guy in a western. “It’s up to you,” I drawl real slow-like, “We can do this the hard way, or we can do it the really hard way.”
Of course, as a mediator I have no authority. I can’t do anything to anybody against their will. I’m like the king in The Little Prince. I expect obedience, but I’m reasonable. Tell me what you want me to order you to do, and I’ll order you to do it.
Another way to look at the process is that settling lawsuits is like enacting child labor laws. Everybody agrees that exploiting children is bad. But no individual employer can afford to stop employing children as long as the competition continues to employ them. Hiring adults would increase costs. Increased costs would require increased prices. Higher prices would reduce sales, and drive the firm out of business. Employers as a group need government to compel them to stop exploiting children. They howl about it, of course, and resist every other incremental improvement in working conditions, but if we’re going to live in a civilized society, certain conditions are required, and there is no way to achieve those conditions other than to impose them. As Heraclitus said, “Every beast is driven to the pasture with blows.”
Some conditions have to be imposed because of economic reality, others because of political reality. When progressives came to FDR and asked for legislation, he said, “I agree with you, I want to do it, now make me do it.” Even FDR needed political cover before he could do what he wanted to do.
In a similar way, some parties need the mediator to make them settle. Sophisticated parties know this and expect it. Notwithstanding all the happy talk at ADR conferences about party self-determination and empowerment and so on, a mediator has a professional duty to provide head banging and arm twisting services when the situation calls for it. It’s part of our job.
In other cases the mediator’s role is less the heavy and more the midwife. In those cases the parties know what’s coming, and they know where it has to come from. There the mediator’s job is merely to look confident, and encourage them to push.
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