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Mediation Advocacy: The Story of Mediation

From Settle It Now Negotiation Blog

Compare the hilarious Bob Newhart routine above (from Mad TV) with any episode whatsoever of HBO’s new series about psychoanalysis The Treatment.  

In legal/mediation terms, Bob Newhart’s "treatment" — "just stop it!" — is akin to the mediator’s refrain — "move past it," "get over it" or simply "move on." 

Gabriel Byrne’s methodology in The Treatment, on the other hand, is more akin to the process of complex commercial litigation.  The litigator, like the analyst, doesn’t focus so much on the "patient’s" described experience as he does upon his own interpretation of that experience.  We litigators — like the chair-bound analyst — too often ignore our client’s actual, multi-dimensional, ambiguous and self-contradictory experience in favor of the form of their "problem"  — the size and shape it must take to fit the "remedy" we are capable of providing.             

In either case, the patient/client too often feels like he is being treated like a child — a child whose possession of a problem seems to give the designated authority figure the right to tell him what to do — "just stop it" — or to re-interpret, shape, edit or "spin" his very personal story into a "form of action" the law will recognize.  

Take a look at how unhappy Gabriel Byrne’s patients are.  They’re not unhappy just because of the problems they had when they first stepped through the therapist’s door.  They’re agonizingly unhappy because "the doctor" infantalizes and objectifies them; tells them they don’t know what they’re really thinking; suggests that they don’t know what’s best for them; and, then "hides the ball" while he lets them drift around without mooring.   

The Mediation Story 

The "mediation story" excerpted below — like last week’s litigation story — is not the client’s story but the lawyer’s or the mediator’s preferred narrative.  Here, we tell our clients to "get over it.  Fix the future.  Don’t obsess about the past.  Just stop it!"

But some clients are not going to want to "get past it." Some want to, need to, maybe even should "right the wrong."  Others want to, need to, maybe even should put the past behind them and problem-solve the future.

What do we do? 

We listen with as little judgment and as few pre-determined "solutions" as possible.  Then, we outline for our clients what we can do to help them solve their problem with our particular skill-set.  Then we tell them about the myriad other solutions available to them.  Preferably, we have a referral list in our desk drawer so we can provide them with the names of people whose skills and solutions best suit what they want.  

What we shouldn’t be doing is selling our process. 

With that wind-up, here’s more from CLIENT COUNSELING, MEDIATION, AND ALTERNATIVE NARRATIVES OF DISPUTE RESOLUTION — on the "mediation story."  How all and any of this can be incorporated into your practice in the next post on this topic.    

[The mediation] narrative profoundly differs from that of litigation. The engine that drives litigation’s morality tale is that conflict resolution is a contest between parties, one of whom necessarily represents good and the other necessarily represents bad. As a result, litigation seeks to designate who has committed moral transgressions by breaching legal norms (or, from the perspective of the defendant, who wrongfully accuses others of having done so).

The Story of Mediation subverts these norms by transforming this familiar morality tale into a story of collaboration. This subversion begins through how mediation conceives of conflict itself. Implicit in the Story of Litigation is that conflict represents a breach of the norms of conduct, thereby ripping the social fabric in some way large or small. In contrast, in mediation, conflict is a norm of conduct, a necessary byproduct of humans having distinct experiences and personalities and needs. Conflict is thus not necessarily a disruption of the moral order, and, indeed, can sometimes be productive. . . . . .

[T]he meta-narrative of mediation seeks to map the [parties’] "strivings" and "vanquishings" onto a collaborative struggle to resolve conflict. This narrative casts all participants as players in a process – collaboration – that is focused on reaching the common goal of successfully resolving or transforming a dispute. This story has moral entailments because collaboration is accepted as a social and moral good. Unlike litigation, however, this story does not generate a binary moral universe that divides the good from the bad, but, rather, a universe that values collaborative striving to achieve common ground and resolution.

This story places mediators in a role that is very different from the role played by decision-makers in litigation. Rather than being heroes of moral vindication to whom wronged parties appeal for justice, mediators promote and model collaborative striving to overcome conflict. This plays out in many accepted techniques in mediation. Mediators, for example, often seek "commitment" from participants to the process of mediation, although mediators are careful not to extend this commitment to a commitment to agree. 

This commitment to process is a proxy for a commitment to collaborate to seek to resolve conflict, thus incrementally moving participants away from contested litigation and towards collaborative problem solving. Similarly, mediators often "reframe" participants’ statements in order to emphasize "common ground." This is also an effort to move parties away from a morally charged contest and into collaboration. Finally, mediators encourage and model collaboration through a positive message of optimism and progress towards resolution, even when (or, perhaps, especially when) impasse appears likely. 

Moreover, mediation approaches the narrative movement from Efforts to Restoration of Steady State in a very different way than litigation. . . . . The very language through which litigants seek redress of grievances – to "be made whole," "to pay your debt society" (with its implication that payment of the debt would return the ledger to balance), even the word "remedy" – implies Restoration.

In contrast, mediation tends to reject Restoration as a state to which the parties (and society as whole) should or even can return. Rather, mediation seeks Transformation on the part of all disputants so that conflict is resolved. It does so by embracing the notion that perceptions of the world (including perceptions of the actions of others) are unstable, thus enabling parties to appreciate alternative perspectives as a way to promote resolution of conflict. Mediation, therefore, does embody a plot that adheres to the narrative movement described by the Austere Definition, albeit in ways that are utterly alien to the morality tale of the story of litigation. The story of mediation can be characterized as follows:

  • Steady State: Whatever Each Party Views as Pre-Conflict
  • Trouble: Whatever Each Party Views as Constituting Conflict
  • Efforts: Collaborative Striving To Overcome Conflict as Modeled and Promoted by Mediator
  • Transformation of Steady State: A New Relationship Among Parties
  • Coda: Moving On

Victoria Pynchon

Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all… MORE >

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