“Are you even listening to me? It seems like you are siding with their side of the story!” I am sure many mediators have heard a similar sentiment expressed at some point in your mediation careers. It is quite clear that you are listening to two sides of the same story, but it is your job to help tell a different story—one that combines elements of the two opposing stories. The big problem is that both parties believe their side is the correct, true, or reasonable story. While mediators struggle to create the perception of neutrality, disputants struggle to establish the validity of their version of the conflict. However, disputants are not the only people telling stories during the mediation process. Throughout a 2-year dissertation project that investigated what mediators say to effectively structure the process, manage relationships, and involve the parties, I learned that successful mediators don’t just listen to stories, they also tell them. Innovative mediators often discuss three types of stories, and this brief essay is about those stories and how they are used to create a useful, progressive, and satisfying mediation.
Before exploring the stories that mediators tell, it is necessary to briefly explain the theoretical backdrop for this essay. The communication scholar Walter Fisher (1984, 1985a, 1985b) argues that the distinguishing feature of human beings is the fact that we are natural storytellers. He suggests that humans are homo narrans because we tell stories to make sense of our place in the world, to communicate our ideas to others, and to explore the unknown. These stories range from complex research reports created using abstract jargon to simple analogies, conversations, and examples. In both abstract and simple stories, Fisher found that three criteria must be met for the story to be accepted by others: probability, coherence, and fidelity. Mediators who are effective storytellers are able to blend elements of each disputant’s story into a new narrative, and this narrative makes sense and rings true to each disputant.
The stories that emerge in mediation are not that different from stories contained in children’s books. For example, they include characters, sequences of events, plots and climaxes, back-stories (i.e., context), chronologies, settings, themes, and conflicts. Fisher’s theoretical notion of humans as homo narrans can help clarify the intersecting stories being told during mediation. By exploring the idea of mediators as storytellers in combination with concrete examples from actual mediations, my hope is to provide mediators with another way to think about and improve their practice.
The Procedural Story = Control
We might not think about explaining the mediation process to the disputants as a story, but that is exactly what it is. During the introductory statement the mediator should establish appropriate roles, rules, and expectations. Further, they discuss the timeframe for the mediation and go over the different settings that might be used (e.g., caucus, taking breaks). What is interesting about the procedural story is that it is often retold in entirety or briefly mentioned several times throughout a single mediation. This story helps the mediator establish a comfortable environment, reduces the uncertainty of the mediation participants, and establishes the mediator as having some amount of control. This story is usually retold when dealing with difficult disputants and attorneys and is a useful way to get people back on track to the ultimate goal of the mediation: moving past the conflict. Fisher says that stories must exhibit fidelity in order for them to be accepted by an audience. In other words, an audience must be committed to the story and believe that it rings true according to their world view and values. By asking for agreement to the rules and roles of mediation at the beginning (e.g., procedural story), disputants and attorneys cannot easily back out of their commitment to the mediation process. However, mediators must be confident enough to revisit this story when necessary, which is not an easy task.
This is especially difficult because mediators are often dealing with multiple audiences, the attorneys and the disputants. Each of these parties will interpret the procedural story in different ways. For instance, attorneys will retell the procedural story to their client in a way that undermines the process of mediation. I was part of a mediation where an attorney told their client, “This process is just a formality…as long as we play nice we will get our time in court. ” The attorney stated this comment in front of both parties and two mediators, of which I was co-mediating. Without skipping a beat, the lead mediator stated, “I appreciate where you are coming from since you probably feel more comfortable in the court room, but today I would like to hear from your client. Do you think letting your client talk about the issues will take away from your time in court?” The attorney shook her head “no,” and the mediator continued, “Excellent. Well since we are all hear to discuss matters in good faith, why don’t we talk about what brought us here today.” Three hours later we had reached a partial agreement and the two parties were laughing about their stubbornness at the end of the process. In short, mediators often have to retell the same story over and over for it to sink in with the disputants and attorneys. Don’t be afraid to remind them about procedures, because what is often being challenged without saying so is the expertise, authority, or control of the mediator.
The Joint Narrative
This story is the one we use to combine the underlying positions of each party. Because of the unique facts of each case, it takes a different form every time. However, there are some strategies that successful mediators use to artfully blend these stories into a new, coherent narrative. The first strategy is creative license. Creative license involves the retelling of a story from a slightly different angle. Mediators use hypothetical questions and scenarios to establish creative license and get the parties to think about the situation from a different vantage point. For instance, during the interviews for my dissertation a mediator retold the story about a multi-party mediation in which a commercial land developer was fighting with a group of environmentalists and a local government about how to best develop a piece of land. This particular mediation asked each group to “do some homework” about the other parties’ needs, such as looking into the job duties and expectations of the other groups. This empathic exercise paid off, because the next time the groups met they were able to discuss the issues in a more compassionate manner. Further, the mediator literally asked the groups to go back to the drawing board and re-envision how this land could be developed. Although the mediation process was spread out over several weeks, it culminated in a development project that was supported by all involved parties.
Aside from asking parties to revision their situation, another useful way to tell a joint narrative is to use intelligent ignorance. This narrative approach allows a mediator to strategically retell part of a disputant’s story in an incorrect manner, which usually prompts the disputant to correct the mediator and retell their story. This Socratic approach to mediation can help mediators move the discussion forward while allowing the disputants to remain in control. Intelligent Ignorance also allows the disputants to save face and can often break some tension in the room by increasing the perceived expertise of the parties. I observed this strategy many times throughout the dissertation project, and it was an excellent way to entice the disputants to begin retelling their story in slightly different terms. For example, during a mediation over child custody issues, each party was accusing the other of allowing the children to be accompanied by untrustworthy adults. One party allowed the kids to be babysat by a convicted felon and the other party lived with a known drug dealer. The mediator simply mixed up the two problematic parties when asking the parents if they would allow the kids to be around such ill reputed people. This subtle strategy helped each party see that the kids shouldn’t be around either adult and they quickly reached an agreement over that issue.
Retelling a joint narrative will take many different forms and can be accomplished through a variety of discursive strategies, but two very effective ways are through intelligent ignorance and creative hypothetical situations. No matter what strategy you use to create a joint narrative, that narrative must exhibit coherence (Fisher, 1985a, 1985b) for the audience. The parties and attorneys must believe that it is a reasonable and equitable solution to their issue. If the new narrative is not coherent, the parties will not buy into it. One way to achieve greater narrative coherence is by sharing reasonable outcomes from similar mediation experiences.
Stories of Past Utility
“Mediation training and real mediations have one thing in common, which is an opportunity for you to add arrows to your mediation quiver.” This quote suggests that mediators should take away useful stories and strategies from one’s mediation experiences and use them in future situations. Another mediator said that “finding the right way to say something is a trial and error process…the more errors you have in the past will result in less trials in the future.” This mediator was honestly discussing the notion of learning from past mistakes and trying not to repeat them in the future, however, the opposite is also true. Successful mediators create a mental database of effective mediation strategies and outcomes and then call on that mental database in many mediation scenarios.
“I know your case isn’t exactly the same, but I have seen other couples do…” This brief phrase is an excellent way to use successful mediation stories from the past. Just because cases are unique does not preclude mediation agreements from working for multiple disputants. The key is being able to analyze the facts of the case and read the audience. If you retell a previous story that was successful and it is clear the parties do not react favorable, do not try to champion that one solution or story. Fisher says that memorable stories are probable, they have a certain quality about them that makes them seem like they can be applied to the current context. Stories, like life, are full of references to context such as previous relationships, chains-of-events, rational and irrational characters, villains and heroes, and many times the story may have several possible endings. One goal of effective mediators is to allow the disputants to participate in crafting essential story elements. Further, mediators must remember that just because an agreement is reached does not mean the parties will learn from the climax of the conflict. The Memorandum of Understanding usually signals an additional chapter to the disputant’s lives rather than an ending to their stories, and unfortunately the “happily ever after” often does not occur. However, one should not be fixated on the somewhat depressing realization that people’s conflicts are rarely “solved” during mediation but rather be content to have helped people articulate a new direction in the story of their lives.
Moving the Story Forward
We need to make sure that what we are saying and doing during mediation is useful to the disputants, is progressing toward a clear goal, and is addressing and satisfying the needs of each party. Fisher’s idea of humans as homo narrans can help the mediator think about the intersection of stories being told during mediation and possibly identify problematic plots, characters, and chronologies. As I said in the introduction of this essay, successful mediators don’t just listen to stories, they also tell them. We probably don’ think about what we are saying in mediation as narrating a story, but that is exactly what we are doing. It is just a co-narration process with lots of on-the-spot-editing! When we hear the question, “Are you even listening to me? It seems like you are siding with their side of the story,” we must be transparent and bold enough to say that there are two sides to the story and our job as neutrals is to help come up with a third story that makes sense to both parties.
Mediators should use the procedural story, the strategies for creating joint narratives, and past useful examples to create a new narrative that will help the parties see the conflict in a new light. If mediators view themselves more as storytellers and less as rational problem solvers, we will be able to help coauthor the participants’ approach to the disputed issues and perhaps gain a deeper understanding of why humans are homo narrans.
All names, events, and locations have been altered to preserve participant confidentiality.
Schaefer, Z.A. (2010). ‘Talk about Conflict’: Understanding Interpretive Repertoires in Community Mediation. Unpublished Dissertation from Texas A&M University.
Civil Negotiation and Mediation by Nancy HudginsI conducted a divorce mediation recently where the parties have been separated for many years but now have started the divorce process by coming...By Nancy Hudgins
Today is my son, Zach's birthday. He is a man of many facets: a musician, a sharp business mind, a bon vivant, athletic, handsome, sweet, creative, tough, ambitious, and all...By Jan Frankel Schau
“This article was originally published in ‘The Executive Business Journal’, Issue No. 46, November 2012, http://www.the-executive.biz/issues/46/, Ta’Xbiex (Malta): Effective Marketing Ltd.”Taking a holistic view on the internal organisation and its...By Herman Zandt