In Bernie Mayer’s new book, Beyond Neutrality the author introduces a new dimension of definition for the field of ADR, and more specifically, for the field of Mediation. The book is predicated on the recognition that ADR/Mediators should be able to help their clients more, by expanding the roles that each of us will play. The new roles involve other disciplines and our own, in trying to redefine ourselves in a broader and more all encompassing manner.
There are a number of motivating factors which would lead the industry to make this redefinition. One motivating factor is to so clearly distinguish ourselves as practitioners of Conflict Management, or as Mayer mostly uses in his book, “Conflict Specialists.” By further defining our services as broader, and by concentrating on our expertise as conflict experts, we can further ensure that the field of ADR/Mediation/Conflict Management/Resolution does not become subsumed in any other presently existing discipline.
In addition, Mayer looks closely at some of the assumptions we make about ourselves as Mediators, and why we are not fulfilling all the client’s needs when we are called in. One of the most interesting and provocative items with which Mayer deals, is the concept of “Neutrality” itself. He posits that all Mediators come to a conflict with their own personality, prejudices, Political Affiliations, personal biases, gender biases, and even a bias toward the one who pays. In fact, Mayer goes as far as to say the unsayable. He questions whether anyone can be truly neutral. And then he questions whether we need to be.
The book proposes that we are all conflict specialists, those of us who are professional Mediators, Arbitrators, Facilitators, Coaches and other associated and affiliated ADR and conflict specialties. But to get beyond Neutrality, one must consider other roles that are not always a third party neutral. This is because, our potential client base need more than just a structured mediation system to help with problem resolution. In fact, they not only need that, but also, they need help when they must engage in conflict.
The engagement in conflict can take many forms. It is the “Conflict Specialists” job to contain the conflict and to see that it is productive conflict. Often, people do not realize, that they need to engage in conflict. Many people use a pattern of avoidance, which is effective in reducing conflict, until it has been ignored so long, that it implodes.
Additionally, Mayer challenges the competency and the quality of the Mediator Base. How much training have they had, when they start mediating? Those of us who train and coach new mediators know that they start with far too little knowledge and technique and skills, and that many a mediation goes by the wayside, because the Mediator was not well trained and did not know how to move the process along.
In developing his questions and observations, Mayer looks at why people resist going into mediation, and what would help them toward a process that is productive. He shows how Mediation is sometimes “Misused.” He points out values and beliefs that are obstacles to our expanded roles. He analyzes the past role of Conflict Resolution in Society, which has a very ancient history.
After discussing the elements of what Mayer calls “A Field In Crisis” he goes on to discuss the concept of “Engagement.” Quite often, the parties are not ready to seek resolution. Sometimes they really don’t know what they want. Sometimes what they really want is to fight. There is nothing wrong with this desire, and sometimes it is necessary for a full cathartic effect and expression of all the issues involved in the conflict. But in addition, it indicates to the “Conflict Specialist” that there may be a need for parties to engage each other in controlled conflict in order to come to a mutually productive and acceptable solution.
Of all the ways in which to broaden our practice Mayer focuses particularly on this concept of “Conflict Engagement.” Why is this an important concept? Because as stated above, many parties either are not ready to start to resolve, or they anticipate a conflict and therefore need something other than a third party neutral, they need an advocate and/or a coach to help them properly prepare for an impending conflict (Contract Negotiations for example.). The ADR Specialist has all the tools necessary to advocate for a client. In addition, the ADR Specialist can play multiple roles, as long as they are not at cross purposes.
For example, a Mediator often encounters situations where there has been insufficient discovery and there are certain critical pieces of information that need to be obtained. This information may be publicly available, or it may be the same needed information for one or more parties to evaluate their position.
In these cases, a Mediator can go beyond Neutrality, by volunteering to procure this information as a neutral, if the parties will allow the neutral to act as their surrogate in collecting this needed information. This practice relieves a considerable monetary and time related expense for all the parties, as if the neutral finds out the information, then it need only be done once, and the bill split between all the parties. If it is done by one advocate or the other, they both have to do it, and they both have to charge. And there is no fee splitting.
Another example of a situation where the Mediator can go beyond Neutrality, is when the parties are all united in one common goal, for example, perhaps all the parties are involved in a real estate problem that has multiple culpabilities, and the one entity that is most responsible is not represented or a named party to the suit, because it is the Municipal Electric Company. The problem is old bills that are part the responsibility of the old building owner, and part the responsibility of the new, and part the carrier of the buying attorney’s Professional Liability Carrier, for messing this thing up in the first place. The Mediator in this case, can ask permission to go beyond Neutrality, by, for example, offering to “Negotiate” with the Electric Company on behalf of all parties. Since their objectives in such a Negotiation are all congruent, that is, they all want the final bill/settlement to be as low as possible, it is possible for the Mediator to act as an advocate.
These types of activities, and many others that ADR professionals are capable of performing, should be added to our repertoire of services. While it is legitimate to ask the question; Is the title “Conflict Specialist” the right one? I would submit that it is not. It seems to imply that you are a specialist in creating or making conflict. Rather, for marketing purposes, a term such as “Conflict Resolution Specialists” or “Conflict Management Specialists” may be much more appropriate for marketing purposes, as both remind the potential client that ultimately, resolution is the objective.
More than the specifics that Mr. Mayer mentions in his book, is the concept of being non-neutral, breaking through long held beliefs, and provocatively challenging ADR/Mediators to reexamine what they are doing, what they’re potential customer base needs, and how to combine those concepts in a single definition. If nothing else, the book truly calls into question some of the basic tenets we believe about Mediation and 3rd Party Neutral Statuses. This discussion is timely, and I believe very legitimate. ADR Practitioners must face up to the needs of the market place. In order for them to do so, they need to recognize the deficiencies that exist and work to correct them or alter the perceptions that keep people resistant to Mediation. If we examine these beliefs and potential solutions, we find that there is a lot more that we can potentially do for a client, than just mediate disputes. The book is an important one in the field and should be seriously read and considered by all ADR Practitioners, particularly Mediators.
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