Who is the smartest person in the mediation conference room? Being a non-attorney mediator I often have the attorneys in the mediation teach me lessons. They explain legal procedures, laws, and underlying issues of legal actions. Many also jump on every chance they get to underline that I am not an attorney. “Well, you’re not an attorney, so…,” they will say. However, the surprising thing about this very same fact is that I have a very high success rate; in some cases higher than my attorney mediator counterparts. Why is that?
After pondering about this for quite some time while exploring different law school pamphlets, I have come to realize that this conundrum could be attested to the “Curse of Knowledge.” You see, when an attorney mediator analyses the dispute at hand, he or she is cursed with the knowledge they already have about the legal standing of that case and thus will not go too far out of the box. On the other hand a non-attorney mediator will be more likely to ask the less likely questions and therefore invoke further ideas. These ideas, will surely serve as the outside the box suggestions which will in turn trigger different actions from either party in order to settle the dispute.
In the book Yes! Robert B. Caldini talks about the discovery of the double helix in the DNA. He writes that if Rosalind Franklin, a very intelligent British scientist did not have a much less experienced counterpart of James Watson and Francis Crick working on the other side of the globe on the very same dilemma, then the secret of the DNA would never have been uncovered. Watson went to explain that, “Rosalind was so intelligent that she rarely sought advice. And if you’re the brightest person in the room then you’re in trouble.” So even tough all three scientists were very much devoted to their work and to their goal, Watson and Crick were much more open and willing to embrace approaches that were outside of their area of familiarity. Collaboratively, going outside the box and not having their minds and egos clouded by the course of knowledge they were able to find the answer to the DNA.
In mediation, it is very important to explore all possible avenues of dispute resolution, no matter how far fetched they might seem at the time. However, It is also important for us as mediators to stimulate the thinking of the disputants in order to allow them to find their own answers. Remember, there is no such thing as a stupid question. But what do I know, I am not an attorney.