The Mediator’s Triangle: Organizing the Mediator’s Focus

The mediation process and the mediator’s work have been well described and discussed by others, including Baruch Bush and Folger^[1] , Cloke^[2] , Krivis^[3] , and Moore^[4] . These authors provide a great deal of valuable information and guidance and should be studied. At the same time, I have found in my own practice as a mediator an approach that is somewhat different from those suggested by these authors. The purpose of this article is to describe this approach in the hope that others may also find it useful.

I call this approach the “Mediator’s Triangle” (not to be confused with the Bermuda Triangle, which one would hope is an entirely different subject). The first side of the Mediator’s Triangle is Facilitation. The second side is Overcoming Barriers. The third side is Creating Motivation for Resolution. I suggest the image of a triangle because I want to avoid the thought that these are serial steps. Rather, they are all relevant all of the time.

Facilitation

A mediation session is much like a musical performance. It takes place at a particular time, at a particular place, and for a particular purpose. In order for the performance to be successful, many decisions must be made, efforts coordinated, and directions given. Some of this occurs as preparation and some during the performance itself, but it is all important (two varying degrees) for a successful performance, and without attention to such matters, the performance could very easily be a disorganized mess. ^[5]

As with a musical performance, a mediation session presents certain “structural” and “behind-the-scene” considerations that are not the direct subject matter of the event, but are prerequisites for a successful event. Some such considerations include ^[6] : The necessary participants and attendees;

A conducive date, time, and place;

Attention to creature comforts;

The agenda and how the process will move from beginning, to middle, through to an end; and

Identification and implementation of specific mediator interventions.

I find it helpful, both while planning for a mediation session and during the session itself, to focus on such structural issues as a distinct subject. Doing so allows me to focus on the tools in the toolkit that directly relate to these issues.

Overcoming Barriers

Sometimes it is enough that a dispute be facilitated well; however, in my experience this is rare. Rather, parties in dispute often are unwilling to let go of the fight or are unable to do what is necessary to move past the fight. I call these reasons “barriers,” and if resolution is to be achieved, these barriers, whatever they may be, must be overcome.

There are many types of barriers. There are barriers that arise from an interest in continuing the fight, and there are barriers that arise from perceptual and cognitive errors. ^[7] In either case, they constitute resistance, friction, and headwind to resolution. Some of the more common barriers are:

A lack of information; a participant is unwilling to move off his or her position because he or she do not have enough information to know whether doing so is wise or foolish;

A lack of knowledge about the relevant law;

A lack of experience with what is likely to happen without a voluntary resolution;

A fear of being played as a fool by the other participants^[8] ; it can be a great deal safer to continue fighting than risk the decision to stop;

A fear of appearing weak or foolish in the eyes of some important third-party; a fear of losing face^[9] ;

A desire to cause pain in the other participants by way of the fight;

An unwillingness to admit a prior mistake in starting or maintaining the fight;

Poor conflict competency skills; the problem of a bull in a china shop;

Being caught in the fundamental attribution error^[10] ; one should not be required to dance with the devil;

Being caught by the natural tendency to overvalue one’s position and undervalue the position of the other participants; and

Engaging in unproductive cross-talk.

As with facilitation, I find it useful to focus on the issue of barriers as a separate and distinct subject in preparing for and conducting a mediation session. I find it useful because the tools that I find useful in overcoming barriers tend to be different than the tools useful in dealing with facilitation issues.

Creating Motivation for Settlement

It is sometimes enough to successfully deal with facilitation issues, and it is sometimes enough to deal with barriers. However, in my experience, more is usually needed. The participants must be motivated to change. Think about the space shuttle sitting on its launch pad. All the structural issues are dealt with and there are no barriers to launch, but without more, the ship is not going anywhere. It needs thrust.

This is the arena of interests identification, options generation, and problem-solving. What do the parties want and need? What are the available options? How can a solution be structured that gives each participant enough of what he or she wants and needs such that all will all agree to end the fighting.

Much has been said in the literature about these subjects, and it need not be reviewed here. However, and again, I find it useful to focus on motivations for settlement as a separate and distinct subject because I find that tools useful for this are different from the tools useful with respect to Facilitation and Overcoming Barriers.

Conclusion

Many useful models have been put forward about what a mediator should do. It is my belief that the Mediator’s Triangle, consisting of Facilitation, Overcoming Barriers, and Creating Motivation for Settlement, is a very effective way of organizing one’s efforts.

End Notes

1 Baruch Bush, Rober A., Joseph P. Folger, The Promise of Mediation; Responding to Conflict Through Empowerment and Recognition, Jossey-Bass, San Francisco, 2005.

2 Cloke, Kenneth, Mediating Dangerously; the Frontiers of Conflict Resolution, Jossey-Bass, San Francisco, 2001.

3 Krivis, Jeffrey, Improvisational Negation: a Mediator’s Stories of Conflict about Love, Money, Anger, and the Strategies that Resolved Them, Jossey-Bass, San Francisco, 2006.

4 Moore, Christopher W., The Mediation Process; Practical Strategies for Resolving Conflict, Jossey-Bass, San Francisco, 1996.

5 Unless one is dealing with players who are highly skilled in the process of jamming or improvisation, which is the subject of another article.

6 See generally Ghais, Suzanne, Extreme Facilitation: Guiding Groups Through Controversy and Complexity, Jossey-Bass, San Francisco, 2005

7 It is the subject of another article whether it is important to treat these two categories separately.

8 Comments by Robert Benjamin, June 16-18, 2005, at the Straus Institute for Dispute Resolution, “The Protean Mediator.”

9 See generally Lulofs, Roxane S., Dudley D. Cahn, Conflict; From Theory to Action, Second Edition, Allyn and Bacon, Needahm Heights, Massachusetts, 2000, p. 294.

10 The fundamental attribution error is extremely powerful, very common, and very damaging to a mediation. The fundamental attribution error is an error of cognition whereby one individual believes that his or her own conduct is situationally based and reasonable under the circumstances, but that the actions of another person arise from his or her fundamental character. This being the case, everyone perceives of themselves as being essentially good and one’s own conduct is and ought to be recognized by everyone as is reasonable, whereas objectionable conduct on the part of everyone else arises from an essentially evil (or foolish, etc.) character and fundamental nature. Folger, Joseph P., Marshall Scott Poole, Randall K. Stutman, Working Through Conflict; Strategies for Relationships, Groups, and Organizations, Fourth Edition, Addison, Wesley, Longman, , 2001.

                       

Kendall Reed

Kendall Reed is a mediator and arbitrator working in the Los Angeles area.  He has 25 years experience as a lawyer with expertise in the areas of intellectual property, UCC Article 2 in the manufacturing arena, employment, insurance coverage, B2B disputes, and personal injury. He has 10 years experience as a… MORE >