Since retirement I’ve been a mediator for over 18 years. Prior to this, my life was one of working with adults as a counselor and instructor. 95+% of my mediations are as a volunteer. My mediations are usually small claims and landlord tenant cases with a mix of various other types of disputes, such as child custody and facilitating Oregon Foreclosure Avoidance Program cases. Some of my mediations brought to the fore the following and thus my article.
These mediations focused me on the concept that it’s all about people. What can be more important than people? With less emphasis on the monetary and concrete topics of mediation, the usual result is more focus on the healing and reconciliation aspects of mediation. This leads to better resolutions. These types of resolutions are lasting and become foundations for a healthy society.
From my perspective, establishing the people oriented goals of a mediation start with me. I use the opening statement to develop the concept of litigants stepping up to the plate and accepting responsibility for working out a resolution through transparency. Accepting this responsibility is a major stage toward healing and reconciliation.
In the opening statement, I stress that responsibility is difficult for us all. I try to bring out my humanity by sharing some of the flaws I bring, such as my difficulty in remembering names, poor note taking skills and faulty typing skills in entering the resolution on a laptop. This sharing has proven to be an ice breaker. None of us is perfect.
During the mediation itself, it’s sometimes necessary to reemphasize the benefits of confidentiality. I simply tell the participants that concepts don’t have to be expressed grammatically or legally. They can come completely from the heart. Confidentiality keeps it from being blabbered outside of the mediation. Wow! This really opens the doors, and I better be ready to reframe.
The benefits of the above humanistic approach came out recently in a small claims case. It had to do with damages to a rental home. There was a deep impasse. I called for a caucus with both parties. The landlords were really upset about obvious intentional damage to the premises and wanted to get their pound of flesh. The tenants just felt it wasn’t much of a home to start with and they had taken their frustrations out on the building.
I asked the landlords during the caucus if they could work with the tenants if they accepted responsibility. I asked the tenants if they would accept responsibility for what they had done.
We came back into mediation and I reminded all parties of confidentiality and that they could reiterate this in their agreement. The tenants stepped up to the plate and humbly accepted their responsibility. The landlords reacted in kind by accepting their apology, and a resolution acceptable to all was worked out. For me, the most important aspect of this case was that the parties left reconciled and talking to each other in welcoming terms. The monkeys were off their backs.
This last example is simply one of many that I’ve encountered in so called “small cases”. They’re not small. They have to do with people. The more the value of people is emphasized in our mediations, the more our society will improve through the miracle of forgiveness which allows for honorable resolutions.
Are there cases where good faith is lacking and the above approach won’t work? Certainly there are. My feelings are that much of this goes back to a culture where values are more in things rather than people. Mediation is one catalyst that can help change our culture to people centeredness. We all need to be part of it.
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