Self-Imposed Ground Rules: The Only Kind Worth Having

Institute for the Study of Conflict Transformation by
Dan Simon

“You might be wrong. Your voice can be big. Genuinely listen.”

Steve held up a sheet of paper to the camera, so his wife and I could see that he had written himself these notes before our video mediation. Several times during the 90-minute session, Steve referred back to these notes with an “I might be wrong, but. . . ” or a “I’m genuinely listening and. . . “

Steve and Faith talked about, among other things, how to divide their property in their divorce. Calculating the value of Faith’s share of the house was complicated, since Steve had owned the house before the marriage, had borrowed money against it for separate ventures, and had not accumulated the amount of equity Faith had hoped for.  As they discussed how to take these things into account, Steve felt that it was simply a matter of returning to Faith an amount she had invested in the house at the time of the marriage, along with that proportion of the house’s appreciation.  Faith, who had not been aware of all the debt against the house, thought that her share should include amounts that would have been paid on mortgage principle, if not for Steve’s other debts.

Steve’s occasional reminders to himself during the conversation seemed helpful.  He seemed to genuinely acknowledge that his was not the only way to look at it.  And he appeared to take Faith’s perspective seriously. The utility of Steve’s note to himself led me to consider whether I should suggest these ground-rules at the start of mediations with other clients:  “Remember you might be wrong; listen genuinely; and pay attention to how threatening your voice might be.”  Although these seem like great ideas, the transformative perspective helps me remain clear that it’s not may place to suggest them.

The contribution Steve’s notes made to the conversation arose from their having come from Steve, himself.  For that reason, the notes were meaningful to him.  Preparing for the mediation with those notes and then choosing to follow them during the mediation were empowering for Steve.  And given that these three suggestions had arisen from a therapy session he and Faith had had in the past, they also served as acknowledgement to Faith that Steve had played a role in the problems in their relationship.  So while they seemed like a helpful part of this particular conversation, it’s unlikely they’d also be helpful to other clients, if they came from me.

In previous blogs I’ve discussed how mediator-imposed ground-rules are inconsistent with the transformative approach.  To suggest ground-rules would be to imply that the parties don’t have what it takes to have a constructive conversation.  To attempt to enforce ground rules would require judgment calls on my part, rather than the parties’. To pretend that I know what will be most helpful to the parties in this conversation might temporarily satisfy my desire to appear to be an expert, but it would simply not be true that I know the best way for any two people to have a conversation.

Steve’s ground-rules, that he both declared and then monitored, seemed like constructive parts of the conversation, but only because they came from him.

                       

Dan Simon

Dan is a leader in the field of transformative mediation. He is the author of the chapter on divorce mediation in the Institute for the Study of Conflict Transformation's ("ISCT") TRANSFORMATIVE MEDIATION SOURCEBOOK. He is a Past Chair of the Minnesota State Bar Association's Alternative Dispute Resolution Section. He served… MORE >