Even the Best Mediation Doesn’t Eliminate Differences – Nor Should It

Institute for the Study of Conflict Transformation by Dan Simon

In the heat of conflict, we experience diminished access to our sense of inner strength and our awareness of our connection to others.  At these times, we behave destructively, in ways that harm ourselves and those we’re in conflict with.  At our worst moments, we have the urge to lash out at the other side, even if doing so also damages ourselves. Violence of all kinds, including war and litigation, tend to erupt at these moments, when we are feeling so desperately weak that we believe we have no choice but to try to inflict damage on the other side.

Transformative mediation tends to allow us to regain our ability to make good choices, ones that benefit ourselves and others. It shines light on the many choices that we can make, even at this desperate time; and it shines light on the humanity of our adversary.  That illumination allows us to behave with the greatest wisdom and compassion; and violence becomes far less likely.

But important differences may remain between us and the other side.  Transformative mediation can’t make those differences disappear entirely, nor should it.  The differences may appear less significant in light of our mutual humanity, but they don’t necessarily go away. We’re left with perhaps hard choices about what to do, if anything, about those differences.

We have the capacity to coexist with serious differences.  The USA survived the Civil War. The descendants of slaves and slave-owners live together in the USA. Jews live in and visit Germany without fear.  The world survived the cold war.  Hutus and Tutsis live side-by-side again in Rwanda.  Truth and reconciliation have allowed most South Africans to proceed with life.  Restorative justice programs bring healing, learning and forgiveness between victims and offenders. But in all those cases, differences remain.  In all those situations, there’s still more to talk about.

So the goal of conflict intervention should not be to resolve all differences.  Attempts to rush to a solution tend to do more harm than good.  A superficial agreement often isn’t worth the increased resentment and sense of being treated unfairly.  Often a choice to simply acknowledge the differences, and allow time for each side’s sense of autonomy and mutual humanity to emerge, is far more important in the long run.  Mediators need to be flexible as parties’ growing clarity leads them in unpredictable directions. And paradoxically, a mediator’s patience and support for the full breadth of the conversation parties want to have, makes settlement of the present issues far more likely.

As professional mediators, we often feel pressure to produce the tangible result of a signed agreement.  We imagine that that agreement means the differences have been overcome. If we let ourselves be influenced by that pressure, we limit the potential of our mediations, we increase the likelihood that any settlement reached will be at the expense of parties’ peace of mind, and we ironically even decrease the likelihood of a settlement. We need to remind ourselves that people’s differences often matter to them. It’s not our place to try to guide, educate, or persuade parties that settlement is the right choice.

I’ve heard many anecdotes from personal injury plaintiffs, for example, where they felt pressured by the mediator, and may have come to a settlement, but now felt that the mediation was an additional part of their trauma, and now they’re left with greater resentment, a sense of ineffectiveness, and no actual sense of resolution, even if they received plenty of money. The conflict was resolved in only the shallowest sense. Settlements that result from a mediator’s persuasion did not arise from choices by empowered parties. If we remember that people’s differences matter to them, and if we support them in making their own decisions about what to do about their differences, we provide a valuable service. If we imagine we know that they should overlook their differences, we can do great harm.

                       

Dan Simon

Dan is a leader in the field of transformative mediation. He is the author of the chapter on divorce mediation in the Institute for the Study of Conflict Transformation's ("ISCT") TRANSFORMATIVE MEDIATION SOURCEBOOK. He is a Past Chair of the Minnesota State Bar Association's Alternative Dispute Resolution Section. He served… MORE >