Familiarity in Mediation

One of the more interesting assignments I had this year required me to mediate a dispute between two mediators. In preparing for this mediation, I wondered whether my usual conflict resolution techniques would work. These two experts were already wise to all of the usual mediators’ tricks. What could I possibly suggest that they had not thought of already?

During the course of a couple of conference calls it took to resolve the problem, these two mediators showed that they were way ahead of me with respect to understanding the stages of the mediation process and the techniques we were using to reach a resolution. At one point for example, one of the participants asked me if it was premature to be brainstorming solutions to the problem, before we had fully explored the sources of the conflict.

But even though the participants were well versed in the mediation process, they still acted in many ways no differently from the typical participants in mediation who have little experience with how the process works. Each had legitimate grievances against the other. Each had emotional responses to the other’s proposals. And each had difficulty imagining constructive solutions because they were trapped in conflict.

It was gratifying, and also somewhat amusing to me, to find that some tried and true mediation techniques still worked, even though the participants were fully familiar with those techniques. It was also instructive to see that even experts in mediated conflict resolution are not immune from conflict themselves, and were wise enough to recognize that, just as doctors sometimes need their own doctor, they needed their own neutral to resolve their problem. The experience reminded me of growing up with parents from the mental health field (my father a psychiatrist and my mother a social worker). Even though my parents were experts in family therapy, they found themselves facing the same difficulties as any other parents, and from my perspective, repeatedly demonstrated that they did not understand me at all!

As mediation has become a more prevalent form of conflict resolution, mediators are finding the participants–especially attorneys who have attended lots of mediations, or who have taken mediation training themselves–more and more familiar with the stages and techniques of the mediation process. This familiarity should not make these techniques less effective, however. Instead a deeper knowledge of the process saves some time, because the mediator does not have to explain as much to the participants. But the work of resolving the conflict remains essentially the same regardless of how well the participants understand the process.

                       

Joe Markowitz

Joseph C. Markowitz has over 30 years of experience as a business trial lawyer.  He has represented clients ranging from individuals and small businesses to Fortune 500 corporations.  He started practicing with a boutique litigation firm in New York City, then was a partner in a large international firm both… MORE >