We practitioners talk about many aspects of what goes on in mediation. Studies point to best practices, and we research and write about our experiences. We love to reflect on and share our mediation stories. From being retained to drafting any settlement agreement, we relish the details our conflict resolution practices. However, not much has been said about our in-the-moment thought and decision-making processes. Our love of conflict resolution analyses has not translated into writing about that moment of tension in which, with all parties’ eyes on us, we decide what to say or do next.
We teach a linear stage or step model of mediating that is behavior based; do this, next that. However, we likely tend to use a nonlinear model that is cerebral based; think this, analyze that. In other words, the espoused theory of what we say we do in mediations, and the theory-in-use of what we really do and how we actually do it, may not always align. Perhaps a reason for this potential mismatch is that mediators’ thought process on the spot and under the spotlight has not received enough attention.
Think about any mediation, and there was most likely some heart stopping moment when you realized that the parties were expecting or needing you to do or say something. But what? Each intervention, every reframe or summary, and any caucus, has a potential to be a bifurcation point: that is, an instant in time that changes the parties’ path to something different, with no chance to return to what the path was the second before you said/did something to cause the change.
We sit in the mediator’s chair, usually at the head of table, and if you are like me, your mind is playing air traffic controller with dozens of intervention ideas and possibilities behaving like planes in the air. Depending on the mediator’s individual conflict resolution philosophy, orientation, experiences, and training, some ideas for interventions may land safely, some may be diverted to a different airport, some may remain flying in a holding pattern, and some may disappear from radar. The factors that influence our immediate decision-making in the nanoseconds between having the feeling we should intervene and some sort of intervention in the form of words coming from our mouths, remain somewhat mysterious. How do we actually decide the precise moment to intervene and what that “best” intervention should be? Or, how do we decide that the ‘best’ intervention is none at all, while we sit silently watching the radar screen in our minds where our ideas and the parties’ interactions have near misses?
To be clear, not all of our decisions have the same weight or impact. A mediators’ decision making scope ranges from early on: ‘I don’t have a conflict of interest and am available, therefore I will do this case’, to the day of the session and having coffee available, to beginning the session with which party speaks in what order, and every potential bifurcation point thereafter. But, the decisions often seem to occur without our conscious discernment of the scale in importance or significance of each decision point. We do what we know how to do and trust that our individual decisions will not cumulatively impact the parties’ decision-making, because we believe that the decisions are theirs to make. Do we know that this is, in fact, even true? Does the myth of the decision-making being theirs apply to every decision or just to the ones involving the substance of the conflict?
That begs the next set of questions: what is the relationship between the decisions we make about process and the decisions that parties make about content and substance? Do our decisions affect their decision-making, and if so, how and to what extent? How innocuous is our belief that we decide the process and the parties decide the outcome? Are those two decision streams really silos or are they systems? It matters because if the decision streams are silos, our decisions should have no effect on the outcome. But if our decisions about process are part of the overall decision-making system, what we do does indeed risk affecting how they will decide their own outcome. Do we take ownership of our own power and influence over their outcome?
This subject of decision-making is fascinating, overwhelming, perplexing and, too often, overlooked. Decision-making can be taught, researched and theorized. Entire courses on decision-making skills and dozens of decision-making models exist. Do we know which skills or models might be most appropriate in the multiple and complex contexts of various mediation styles?
There are endless musings on decision-making that could inform mediator effectiveness. These are questions I have been pondering for the last few years. I still have more questions than answers; here are some preliminary thoughts about the instincts of our decision-making and impacts it might have on the conduct of mediations and outcomes.
1. From the first inquiry into a mediator’s availability until the mediator dies or retires, a mediator’s impact on a conflict’s decision-making path is engaged. In complexity science terms, a conflict is path-dependent: meaning how it goes depends on how it starts and what happens to it along the way. Conflict does not start at the mediation room door and stop when hands are shaken goodbye, so the mediation is an added input that affects the conflict’s path and the parties’ outcomes. Our decisions as mediators are inputs that affect the path of the conflict and we should know how that works.
2. Some decisions will be or will become more important than others, but which is which is only revealed over time. Because mediators see only a fraction of the conflict, we may never know the impact we had. Conflicts are comprised of discrete events in points in a time series that can be plotted. Our interventions become part of the time series, and are incorporated into the plot no matter what the outcome. We can affect the conflict outside the boundaries of the mediation room in unknowable ways we should be thinking about.
3. Boundaries around decisions are permeable, and the linkages among the decisions or potential for cascading decisions are not always clear. it may be that no one decision was big at time we made it, but decisions’ effects’ can amplify, dampen, accumulate and cascade. If we just look at the interactions in a linear and simple context, we risk missing important data about the conflict.
4. Risk management is an underappreciated talent and barrier to mediator decision-making. Our orientation towards risk affects our capacity to decide to intervene. We talk a lot about mediation style and models, without considering that our risk acceptance and our capacity to use those mediation models and styles are interconnected in our own unique comfort zones.
5. Tolerance for ambiguity and uncertainty may be essential mediator traits, since only imperfect information exists. We stand in the tension of dichotomy and paradox without knowing anything beyond what we are being told and what sense or meaning we make of it. Our own sense-making mental machinery is hard at work during our decision-making process, when we are under pressure to perform. Yet, we take for granted that we understand how this complex reasoning affects our decision-making skills.
6. The neuroscience suggests our decision-making performance may be hard wired in our brains, while the educational psychology suggests that our decision-making performance can be improved. Is it either, or both of these that are correct or is the sum of the two greater than the individual parts? The science and art of decision-making suggest that what we do may be much more than what we understand we do.
Another ignored aspect of decision-making exists, and that is the difference between our purview of decision-making and that of the parties. Instead, we perpetuate the myth that mediators’ decisions do not affect mediation outcomes. Our opening statements usually contain the disclaimer that, while we ‘control’ the process, decision-making over content resides with the parties. Yet, in most mediations, we make dozens of considered decisions about interventions with no idea of the eventual impact those process decisions will or might have. The power we wield over decision-making from our ‘impartial’ chairs may be a blend of fable we tell about our work and fact that we ignore.
We pay more attention to advancing our knowledge of other skills without realizing the complexity of decision-making. The intersection of decision-making, power, and mediators’ analysis of the process as it unfolds is an overdue discussion to hold amongst ourselves and perhaps in public. I have been invited to open this discussion with you in the form of an article to provoke your comments and feedback. I look forward to sharing these thoughts with you. Please feel free to comment, respond and share your thoughts in any format you want.
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