Push, defend, control other’s behaviors. Counter position with position. Attempt to control the process. Engage in power struggles. Make others bend to your will. Sound familiar? Perhaps like a mediation you have participated in recently? You are probably thinking that I’m describing the parties in the mediation. However, I’m describing the mediator’s interactions with the parties. Shocked? I hope so.
Let’s deconstruct what I’m describing. The scenario is as follows:
Party A arrives early and wants to talk with you privately before Party B arrives. You PUSH back and DEFEND your role as mediator, saying (or thinking) that you would appear to be biased if you did so and you must remain neutral. When Party B arrives, you begin the mediation and start with the mediator’s introduction. As part of your introduction, you have always used “ground rules,” in order to attempt to CONTROL the parties’ BEHAVIORS in the mediation process. Let’s assume that the parties accept your ground rules, which, by the way, are vague and interpreted by each person in the room differently, and you reach a private session where Party B demands that you tell him whether or not he will win if he goes to trial. Since this is not how you define your role and you believe doing so would compromise your effectiveness as a mediator, your response might be, “Sorry, I can’t do that, that’s not my job as the mediator….my role is to…………” You have just COUNTERED A POSITION of “I want you to do this” WITH A POSITION of “no I won’t do that.”
We’re not quite finished, however. Now assume that you have brought the parties back together and they start raising their voices. You wait a bit to see if the volume decreases and then remind the parties of the ground rules, which included “no yelling.” The parties now gang up on you and let you know that they want to yell at each other. You now ATTEMPT TO CONTROL THE PROCESS by pushing back and getting into a POWER STUGGLE with the parties, and try to MAKE THEM BEND TO YOUR WILL. Your will is to enforce your ground rules.
We are taught to try to keep our clients from doing just these things but we do them ourselves. Why? The simple answer is that many of us are taught to do these things in our early mediation training, it’s comfortable to try to control what we can control, and we believe that the parties need some type of framework and guidance around proper behavior within the mediation process to allow the magic of mediation to work. There are, I’m sure, many more reasons, but I’ll stop there for now.
In the Beginning
Mediators are often taught to set ground rules and to restate their role and limitations of the process when confronted with unwanted or disruptive behavior in mediation. This sometimes works well and the intermittent reinforcement of rewarded behavior encourages mediators to continue using these techniques. However, many mediators are unaware of the effects on both the process and the parties of using such techniques.
When mediators set ground rules, the underlying belief (perhaps unconscious) of the mediator is that ground rules are needed in order to control the process or the people. Further, the belief is that ground rules should be those of OUR choosing and those with which WE feel comfortable, since we know what’s best for the mediation process. Typically, however the mediator chooses to express them, the ground rules include treating each other respectfully (generally with no definition of what respect means in behavioral terms), no name calling, no raised voices, no interruptions…all of those things that boil down to what you might tell a five year old about how to behave when you’re out in public. Unless you’re mediating with children (and some of you are), the assumption behind these ground rules is that people are going to do all of these things and need to be told not to.
Like some people, even though I would never think of doing any of the banned behaviors had they not been banned, once such ground rules are established, my deeply ingrained oppositional streak kicks in and makes me want to test out what the mediator will do if I don’t comply.
Fortunately, most mediators do not encounter me as a client. But I’m sure that there are many other mediation clients who have similar responses and who will never tell the mediator that she has inadvertently established a power game by trying to impose her own rules when they are likely not necessary.
Imposing ground rules requires the mediator to become an enforcer – the mediation police. When one party breaches one of the ground rules, it’s likely that the mediator will enforce the rule with a reminder of some type, whether gentle or stern. If later the other party breaches the ground rules, or the other party accuses this of happening, and the mediator doesn’t intervene…..well, let’s just say that the appearance of impartiality vanishes. Since this is one of the pitfalls that the mediator wants to avoid, it’s ironic that the mediator establishes the condition to allow this to happen so easily.
I have never wanted to be a police officer – especially not a mediation cop. An assumption that the parties need ground rules about behavior goes against the principle of party self-determination. What if the parties don’t like ground rules, don’t like my ground rules, or my ground rules are culturally, physically, or otherwise inappropriate for these particular parties. Who are these ground rules for, anyway? The mediator or the parties?
Restating the Parameters of the Role of the Mediator and Mediation
To some mediators, a challenge to the mediator’s role immediately elicits the learned response of reminding the parties, “My role as a mediator is to….so it’s not appropriate for me to do what you’re asking.”
As mediators, we should be aware that when parties ask you to do something that isn’t part of your role, or isn’t in the purview of mediation, they are stating a position. If the response is also a position, a negotiation on the positions ensues. As trained mediators, we all should understand that positional bargaining generally results in a zero-sum outcome – one winner and one loser.
Recently, after I had introduced myself in a joint session and provided a conversational opening to the parties, one of the representatives for the employer respondent asked what my ground rules were. He had previously attended a mediation where the mediator had stated such rules at the onset of the process. Since the others in the room appeared to be confused by the question and what ground rules were, I explained that this was something that some mediators did and noted what some of the typical ground rules generally were. I went on to say that I preferred to work with the parties to establish ground rules as necessary, if and when necessary. The pro se employee complainant began laughing and said that they were all adults and she sure hoped that they wouldn’t need ground rules or that they all were in worse trouble than she thought! Everyone began laughing and the session began on a light note.
Later in the joint session, it was clear that there was significant value to the parties talking freely, without constraints of a “no interruption” rule, since they were exchanging and clarifying information. When one of the respondent’s representatives began to ask questions in an unproductive and disruptive manner, I used the opportunity to reframe and assist the representative in identifying her interests underlying the questions. Although the technique that the representative was using was unproductive, her interests were important and she was able to more clearly identify her needs in a way that could be satisfied by proceeding to share information in a productive joint session for a while longer. Had I initially established ground rules that called for me to enforce certain behavior, I would not have had as easy a time eliciting the representative’s needs and concerns.
T’ai Chi and Mediation
To mediate effectively, I believe that using the energy of the parties is useful. In learning a bit about T’ai Chi, some of the descriptions struck me as powerful parallels:
According to Wikipedia, “traditional T’ai Chi training is intended to teach awareness of one’s own balance and what affects it, awareness of the same in others, an appreciation of the practical value in one’s ability to moderate extremes of behavior and attitude.” Wikipedia goes on to say:
Orthodox T’ai Chi schools say the study of T’ai Chi Ch’uan is studying how to change appropriately in response to outside forces…In order to be able to protect oneself or someone else by using change, it is necessary to understand what the consequences are of changing appropriately, changing inappropriately and not changing at all in response to an attack.
In a fight, if one uses hardness to resist violent force then both sides are certain to be injured, at least to some degree. Such injury, according to T’ai Chi theory, is a natural consequence of meeting brute force with brute force.… Instead, students are taught not to fight or resist an incoming force, but to meet it in softness and “stick” to it, following its motion while remaining in physical contact until the incoming force of attack exhausts itself or can be safely redirected… Lao-Tzu…wrote, “The soft and the pliable will defeat the hard and strong.” (Emphasis added.)
Resistance is Futile . . . and Unnecessary
In the spirit of T’ai Chi, meeting challenges with resistance leads only to some degree of injury to both sides. In mediation, this may take the shape of meeting positions with positions or establishing positions (ground rules) at the beginning of the process in order to try to exert some control by the mediator. Lao-Tzu’s prescription of meeting such hardness and force with softness, following the motion and redirecting, could easily have been written for mediation students.
Back to the Beginning
Let’s return to the earlier scenario and see what might happen if we use the principles of T’ai Chi.
Party A arrives early and wants to talk with you privately before Party B arrives. You inquire about the reason for the desire to speak privately and are told that Party A is wondering whether mediation is the right thing to do. At that point, you decide to have Party A wait for you in a conference room while you wait for Party B to arrive. When Party B arrives, you escort him to a room and say that you want to meet privately with each person for a few minutes so please get comfortable and you’ll be back shortly. You then speak with Party A privately. Party A expresses concerns about whether she really wants to settle this case. You discuss her concerns and options and she decides that since she is not compelled to agree to anything and can leave at any time, she will try mediation. You meet with Party B and ask if he has any concerns or questions about the day. Party B confides that he’s not sure he wants to mediate and you have a similar conversation with him. You then convene the joint process, review confidentiality and other typical information covered in the mediator’s introduction. Instead of asserting your own ground rules, you ask if there are any guidelines or up front agreements that the parties would like to have in place to feel more comfortable with the process. Party A states that she wants to be able to leave if she wants to and doesn’t want to feel forced to stay. Party B says that he wants the same thing. The mediator questions what being forced to stay would look like so that the mediator can be on the lookout for it if it was happening. Both parties say that being yelled at and being told that they have to settle by the other has happened in the past and they don’t want that to happen again. The mediator then asks permission to call such behavior to the attention of the parties if she sees it occurring and asks the parties to do the same if the mediator forgets or is caught up in something else.
Later you reach a private session where Party B demands that you tell him whether or not he will win if he goes to trial. This time, you ask him in various ways what he’s thinking about when he asks that question. He eventually admits that he really hasn’t had a chance to talk with anyone about whether he has a good case and he’s concerned everyone will think that he settled for too little if he settles today. However, he really wants this to be over with.
Quite a different scenario when the mediator doesn’t push, defend, control other’s behaviors, counter position with position, attempt to control the process, engage in power struggles, and try to make others bend to your will, isn’t it? Eliciting the interests, rather than imposing your will or your beliefs on the parties, changes the dynamics and allows you to do what we are trained to do as mediators.
In the opening scenario, I’ve described a process in which neither party is represented by counsel. In the other scenario, one party was represented by two attorneys at the table while the other party was pro se. I can already anticipate readers questioning whether this approach to mediation works with attorneys, or in situations where the parties are “out of control”.
The simple answer is that this approach is one that more fully upholds the principle of self-determination and the primary need to look past positions to elicit interests so that a more fully realized and satisfying outcome, not just a zero sum outcome, is a possibility for all. As for “out of control” parties, safety is primary, however, countering raised voices with a lowered voice and agitated physicality with relaxed, calm and non-reactive responses, makes it difficult for the person to maintain such a highly charged state. Think about how hard it is to stay angry and agitated when listening to Mozart’s music versus listening to Iron Maiden.
So, next time you mediate, remember the principles of T’ai Chi and the philosophy of Lao-Tzu:
First, “[w]hen the effective leader is finished with his work, the people say it happened naturally.” Next, “water is fluid, soft, and yielding. But water will wear away rock, which is rigid and cannot yield. As a rule, whatever is fluid, soft, and yielding will overcome whatever is rigid and hard. This is another paradox: what is soft is strong.” And finally, “the soft and the pliable will defeat the hard and strong.”
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