At a conference many years ago the keynote speaker opined that mediation could not be a profession because there were no jokes about mediators. That comment piqued my interest and I tried my hand at writing a few mediation jokes. One of those jokes came back to me on reading Howard Gadlin’s reflections that fundamentally we are all peacemakers.1. My joke runs: “A mediator had to be called in when Tom & Jerry refused to fight.”2
The assumption underlying Gadlin’s comment is that the parties we help all desire peace. The conceit of my joke is that mediation could be used to re-start a fight. I believe when helping people in conflict we must not presume to know what the parties want from us. We need to distinguish between our wish to help, the parties’ preferred outcomes and the reason they seek our services. Our first priority must be to determine the best ADR practice for those parties in that particular conflict. Parties in conflict do not just want help; they need the right sort of help.
Many of us strive to achieve noble goals, such as peace, justice and fairness, when working to help people in conflict. No one will contest that these goals are all laudable but they are not equivalent to each other. When we have preconceptions about how we can help people in conflict we may influence the parties and the final outcome. For example, if your inner motivation is being a peacemaker you could be misaligned with parties that resist making peace because the deal is unfair. It may seem that working with good intentions is sufficient to meet the parties’ needs; however those good intentions might also be assumptions that could lead to flawed outcomes. We risk overriding the party’s wishes when we do not ask why they sought out our services.
We consider the party’s right to self-determination to be one of the core values of mediation. Robert A. Baruch Bush, Joseph P. Folger3 and Nina Meierding4, amongst others, have emphatically made this point in recent articles. Almost always, self-determination is referenced in relation to mediation itself; however, that right does not start and stop at the door to the mediation room. This issue became apparent to me during a mediation I conducted many years ago. I have simplified the case and changed the names but the core essence remains intact.
As the mediation got going Gloria outlined her side of the case. Allison listened for a while before interrupting with “How much do you want?” After a brief moment of silence Gloria named a figure. Allison promptly got out a check book and wrote a check for the full amount. Allison then got up from the table to leave and Gloria asked “Why didn’t you do this earlier?” The reply came back sharply “Because last month I did not have cancer.”
As I escorted Allison from the mediation she told me, in no uncertain terms, that had she known beforehand what mediation really entailed she would not have come. I have thought long and hard about how the mediation could have been handled differently and have concluded it never should have been started. I believe that Allison would not have chosen mediation had she been informed on all the ways to deal with the conflict. My assessment is she did not need or want assistance from a mediator; she needed someone to provide clarity on her options.
Often we do not have the full picture of the parties’ circumstances so there may be issues that affect their ability to deal with the conflict. In those cases the parties are still looking for someone to provide expertise, skills or support. To be fully committed to the party’s right to self-determination means giving them the option to decide what services they need from us. Parties in conflict are often under stress, vulnerable or facing a life-changing decision. I contend we are morally obliged to serve the parties the best way we can from the very first contact – whether or not that leads to mediation.
Not long ago there were three ways to deal with a dispute: litigation, arbitration and mediation. Even taking the broadest definition of mediation and its flexibility in application, it is not the solution to every conflict. As the ADR field grows in size and complexity the public needs a guide to help figure out their ADR options. Carrie Menkel-Meadow has called for using the right approach for various types of conflict stating: “We now call it ‘appropriate dispute resolution,’ rather than ‘alternative dispute resolution,’ precisely to signal that different processes may be appropriate for different kinds of disputes or in different types of settings.”5
Studies have been conducted to assess the effectiveness of various types of mediation. Further studies on a wider range of ADR practices may show statistical differences indicating which ADR approach to use in certain types of cases. However, people and their conflicts generally do not fit into neat categories so the results of these studies are only applicable when considering cases in aggregate. At the day-to-day level, we must always consider each and every case on its own merits and use the appropriate practice for those parties in that specific conflict.
How do we go about finding the best approach for any particular case? As Ken Cloke notes: “The fundamental nature of mediation and all other forms of conflict resolution is determined, in the first place, by the nature of the conflict it seeks to resolve.”6 The people who know more about their conflict than anyone else are the parties; so the key to selecting the right approach is to ask them.
Everyone handles some level of conflict in their lives so when parties come to us they recognize they need assistance. Most parties are clear on the things they want to happen to end the conflict and these outcomes directly relate to the dispute between the parties. The parties need for assistance stems from their level of ability to manage the interaction with the other side. There is a distinct difference between the reason people seek our services and their preferred outcomes. We provide services that help the parties interact in a productive manner while the final outcome is ultimately the parties’ decision. Typically, on meeting the parties we tell them about our particular dispute resolution practice and ask if it is suitable. How often do we actually find out from each party what expertise, skills or support they are looking for?
The parties are unlikely to be able to answer that question directly. In seeking our help they have decided they need something but it would be up to us to clarify the extent and nature of their requirements. If we asked what the parties wanted they would probably first talk about their preferred outcomes; however we can direct the conversation to their real need for ADR. The potential range of those needs may be wide. It could include someone to facilitate a face to face meeting; provide an expert opinion; be a witness to their story or champion their cause. Gathering information from the parties on why they sought help is the raw data we require to match their needs to a suitable dispute resolution approach.
This ability to diagnose presumes we have sufficient knowledge of the multitude of dispute resolution approaches and can assess their relative advantages and constraints. Conducting a diagnosis would also determine the right type of practitioner to help the parties. When we make a diagnosis we must be ready to direct the parties to someone other than ourselves. To be clear, doing a diagnosis of the parties’ need for ADR may mean turning away work we would have done in the past. Conversely, we could get referrals from our colleagues who have a different set of skills from our own.
The parties have the right to choose the services they want. To honor that right we should not start any ADR process until the parties have sufficient information to decide on how they want to proceed. We are the experts in ADR and our obligation is to enlighten the parties on the various ways conflict can be handled. Our first objective should be to help them find the services most suited to managing their particular conflict and that offer them the best possibility of achieving their goals. The parties must be given the opportunity to decide if we are the right people to help them and if not they should be guided to the help they need. This change in our responsibilities means we will have to gain a basic understanding of all the varieties of ADR and acquire the diagnostic capabilities to direct parties to the practice that best fits their needs.
A wide range of dispute resolution practices are used to help people in conflict. Although studies may provide statistical insight into which practice should be deployed for what type of dispute, our responsibility is always to specific parties in their unique conflict. We must honor the party’s right to self-determination from the start of our interaction with them. Thus, our first and foremost obligation is helping the parties find the best way to deal with their conflict. We can meet that commitment by adding diagnostic capabilities to our existing services and directing parties to the Appropriate Dispute Resolution practice. I am confident we can expand our reach and integrate our entire field when we help parties get the right sort of help.
While parties often make formal demands and offers going into mediation, the underlying interests motivating those positions are not always as clear. Is the plaintiff’s demand motivated by hard costs...By Ryan DeMotte