The Worst Was the First: Lessons from a Rookie

My worst mediation was my first mediation. Cause and effect? Maybe, but it had a number of elements I suspect even experienced mediators would have found challenging. Going in, the case looked like a straight-forward employee-employer dispute over job opportunities. I had taken the case for the experience, but I got more than I bargained for.

I was not completely unprepared. I had taken basic and advanced mediation training from well respected practitioners. I also had a wonderful experience at the Harvard Negotiation Project, including a one-on-one practice simulation with Getting to Yes author Roger Fisher. In order to get “real world” experience, I volunteered as a mediator with the Maryland Commission on Human Relations. The Commission was an excellent place to begin because I had the benefit of its good training sessions in which I learned to refine my techniques. In addition, the Commission’s policy is to have new mediators observe at least one mediation before they start to mediate for the program, and I was fortunate to be able to watch one of the best in my state ply her trade.

However, I was not prepared for what confronted me when the Commission’s call came for me to do my first mediation. It was a cornucopia of difficulties:

• Classic Power Imbalance. In the far corner (metaphorically speaking), the complainant was at the very bottom of the organizational structure. Opposing him was the owner of the company. His words and body language said loud and clear that he was out to put this employee in his place and keep him there. The owner, for example, several times during the session jumped to his feet and screamed into the complainant’s face that he was a worthless employee, he should be fired, and all he would ever be good for was menial work.

  
  

• Age Difference. The complainant was very young, probably under 20. I judged the owner to be in his late 60s or early 70s.

  
  

• Offensive Behavior. I took an instant disliking to the owner because he was manipulative, loud, and generally obnoxious. He was skilled in the use of high-pressure tactics, and he did not wait long to try to intimidate me. Half way through my opening statement about how the mediation process works, his cell phone rang. Despite my offer to suspend the session, he took the call and explained that his mother had just been taken to the emergency room. Given the owner’s age, I quickly calculated that his mother would have to have been older than Methusala, so I doubted his story and suspected that he had arranged for someone to call him 15 minutes after the mediation was scheduled to start. Putting that aside in order to give him the benefit of the doubt, I asked him if he wanted to re-schedule. My doubts were confirmed when he said he wanted to continue and did not show any apparent concern for his mother.

  
  

• Experience Gap. The complainant was no match for the business acumen of the owner. The owner was a wheeler-dealer from the school of hard knocks and I doubted the complainant had even finished trade school.

  
  

• Racial Divide. The complainant was black; the owner was white.

  
  

• Cultural Division. The two sides did not speak the same language. The complainant had difficulty expressing himself in ways the owner could understand, and vice versa.

  
  

• Gender Difference. The Commission’s policy is to co-mediate its cases. This is an excellent policy for the support it could provide, especially for a rookie like me. In this case, however, it did not turn out as planned. My co-mediator was a young woman, which became something of an issue. I was not sure whether it was a function of the owner’s age, culture, or both, but he continually focused on me as the male authority figure and dismissed most of what my co-mediator said.

  
  

• Time Pressure. I had taken time out of my working day to conduct the mediation, and I was very conscious of the need to get back to the office in a reasonable amount of time.

  
  

• Fear of Failure. If I failed to get an agreement my first time out, I was afraid the Commission might not have me back.

As difficult as this experience was, and perhaps because of its difficulty, I learned a number of important lessons about mediation. One was about the power of a caucus. I needed to do something to break the cycle of verbal abuse and intimidation the owner was heaping on the complainant. After getting a basic understanding of the facts of the case and the underlying needs and motivations of the parties, it was time to separate them. Once away from the abusive situation, the complainant wanted to know about his rights under the state program. In a caucus, I could more easily ask questions that drew him out than I could with the owner present.

I also learned that there are times when a mediator cannot be neutral. Reasonable mediators can differ on this point. Some attempt to maintain neutrality at all costs. In A Guide to Divorce Mediation (1993), however, Gary Friedman says there are two circumstances in which he asserts his opinion: if the parties are about to reach an agreement that is so unfair he in good conscience could not write it up or if they are about to make an agreement that a court would deem illegal. He states, “If this willingness on my part to assert my view seems to conflict with the goal of leaving decision-making responsibility with the parties, that is only because it does. My goal is for both parties to make decisions together only when each truly understands his or her needs and these are being met.” (p. 31)

In my case, the initial plenary session was so one-sidedly unfair that I felt obligated in caucus to remind the owner about the available options. I said we could continue the mediation to try to find a mutually satisfactory agreement. Alternatively, if the parties could not reach agreement, the case would be turned over to state investigators for possible litigation. That got his attention. When we came out of caucus, the owner moderated his pressure tactics because he realized he had an incentive to engage.

I also learned something about myself as a mediator. I realize now that I placed a high priority on conducting an orderly process. My training had been in the traditional vein, and I was expecting the session to more or less proceed through easily recognizable stages. Instead, what I found is that mediation is messy. It does not run in a linear fashion; it stops and starts with all kinds of twists and turns. (To an experienced practitioner, this is not a profound observation. Indeed, now that I have more mediations under my belt, I find there is a logical flow only in a largely “macro” sense: there is a beginning and an ending, but the part in between can take many paths depending upon where the parties go.)

On a deeper level, however, my first mediation showed me that I had a need to control the process. Leaving the process entirely up to the parties made me very uncomfortable because it allowed the owner to abuse the complainant. I expected that, at a minimum, there would be civil discourse and mutual respect, and I told the parties so. This backfired because the more I inserted myself to keep things “on track” (as I felt they needed to be) and to “make progress” (as I defined it), the more the owner looked to me to solve the issues. I repeatedly stated that I was a neutral facilitator who would not impose a solution but who was there to help the parties reach their own resolution, if possible. It was no use. The owner kept ignoring the employee and looking to me for solutions. Only later did I realize that my perceived need to keep things under control played into the owner’s hands. I thought I was intervening to prevent unfairness to the complainant, yet all I succeeded in doing was complicating things.

Largely because of this experience, I have tried to become more mindful during my mediations. Instead of working from a pre-conceived vision in my head of how the parties should behave, I realized I needed to be more “in the moment” so that I could more fully experience what might be behind a party’s statements.

Meditation seems to help. A session at a recent Maryland mediator’s conference sponsored by the Mediation and Conflict Resolution Office sparked my interest and I followed up with mindfulness training at a local yoga center. Bhante Gunarantana defines mindfulness as “nonjudgmental observation.” (Mindfulness in Plain English , 2002, p. 139) He says, “It is that ability of the mind to observe without criticism. With this ability, one sees things without condemnation or judgment.” (Id.) I find that a daily meditation practice helps me focus on what the parties are feeling and saying, or perhaps more importantly, what they are feeling and not saying. Meditation leaves me more open to explore where the parties want to take the mediation. I still get uncomfortable when one party is not civil with the other, but at least now I recognize that feeling and look for ways to deal with the situation in front of me without having to respond in a way dictated by my feelings. Meditation helps me recognize what ‘is,” rather than what I think “should be” by teaching me how to separate the two. It has reduced my stress levels because it has taught me to accept that my “should be” does not have to be the outcome.

Was my first the worst because it was the first? If I knew then what I know now, it probably would have gone more smoothly. But it is also true that in my subsequent mediations I have not encountered another situation that was as difficult. That I got through my first mediation is not the amazing part. The amazing part is that I came back.

                       

John N. Greer

John N. Greer is a senior attorney with the federal government, practicing there for 18 years.  Prior to that, he spent three years in private practice in the fields of corporate law and estates and trusts.  He mediates employment disputes for his employer and with the Maryland Commission on Human… MORE >