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Underlying Causes

A mediator at a study group I sometimes attend raised a good point about the limits of most mediators’ expertise.  He wondered whether it is even a good idea to delve into all of the psychological issues that may be motivating the parties to a dispute, since attorney-mediators are not psychologists or psychiatrists and are not qualified to diagnose or solve such problems.  Sometimes it may even be counter-productive to open the wounds underlying a complicated family or business problem, and it may not be necessary or even possible to resolve those problems to settle the lawsuit.  Personally, however, I usually want to try to find out about the forces that are driving the dispute, at least to some extent, because it is often impossible to resolve the dispute without at least identifying the factors that may be motivating the parties.  I also feel that one of the goals of mediation is to achieve some measure of reconciliation, or at least acceptance of the outcome.  I’m not sure it is even possible to get parties who are personally invested in a dispute to view their dispute in purely rational terms, and even if they could do that, I’m not sure it is possible for them to solve a rational problem such as evaluating the potential value of competing claims in court, without involving them on an emotional level as well.  You would almost have to ask people to view their dispute as somebody else’s problem, similar to the way the lawyers might view the dispute, before you could get parties to think about it in a purely “rational” manner.  If the lawyers could get their clients to do that, they probably wouldn’t need a mediator to help them identify the issues that are blocking settlement.

Mediators generally try to reach resolution by getting the parties past the emotional components underlying their dispute.  They might be able to do do this by ignoring those emotional issues, but more typically they let the parties “vent” those issues before leading them to a more “rational” approach.  Either approach may be justifiable depending on the circumstances.   But the question whether it is even appropriate for a mediator who first of all, is probably not a qualified mental health practitioner, and second of all, is acting as a “neutral,” and not as one side’s or the other side’s therapist, to deal with parties’ psychological or emotional problems is still worth thinking about.

We could try to answer that question by pointing out the differences between the goals of dispute resolution and the goals of therapy.  In mediation, the goal is to end the conflict, not necessarily to change the inner person, or cure their psychological problems.  We might use some of the same techniques counselors use to help people communicate with each other, so that they can perhaps understand each others’ problems better; but we are not necessarily trying to solve the parties’ underlying problems ourselves.  And we don’t need to know the clinical explanations for people’s behavior in order to expose factors that may be exacerbating a dispute, and thereby resolve it.  Sometimes it is enough merely to find out that one of the reasons a family member filed a lawsuit was because they were not invited to a family event, or that an employee was insulted by the way they were treated at work.  Sometimes it is enough for parties to feel that those kinds of grievances have been heard and acknowledged by the other side, to allow them to put the dispute behind them.  Even in a personal injury case, as someone in our group pointed out, where there might not be any emotional issues motivating the decision to file a lawsuit, the injured party may still need to have the insurance carrier listen to and acknowledge their pain and suffering before they can bring themselves to settle the lawsuit.

In addition to exposing and communicating these underlying causes, should we also consider “treating” those psychological factors that may be preventing a person from viewing their dispute in a rational way?  Here is where the absence of standards and practices in the mediation field can lead us into the tricky situation of acting like amateur psychologists.  For example, if a person has difficulty settling a lawsuit because they are paranoid, should we try to reduce that person’s paranoia in order to get them to trust the other side enough to enter into an agreement with them?  If a person is prone to disputes because they have an irritating personality (like the character, partly based on himself, that Larry David plays on his television show), should we suggest ways for that person to make himself or herself seem less annoying, so as to make the other side more inclined to settle?   If we see someone who might benefit from Prozac or Valium to get themselves on a more even keel, should we suggest that they seek that kind of treatment in order to help them settle their dispute?  And in the converse situation, if we see a party impaired by drugs or alcohol, should we suggest that they sober up before they agree to something they might later regret?  Of course there are also real psychologists or social workers who do mediation, and I’m sure they do it somewhat differently from lawyers or judges.  Yet I think even those qualified mental health practitioners recognize that what they are doing when they mediate a dispute between two people or groups, is different from what they might do in treating an individual as a patient.  I would be curious to hear other mediators comment on where they think mediators might be crossing the line into practicing a field they are not qualified to practice.

Whether we like it or not, every kind of human interaction, whether in the courtroom or around the negotiating table, is fraught with emotional issues.  To resolve a dispute at trial, the jury, which we might think of as a group of amateur psychologists, commonly uses their collective wisdom to figure out what is really going on beyond what the witnesses are telling them.  To resolve a dispute at mediation, we should also have some understanding of what lies beneath the surface.

(Still from Running with Scissors)


Joe Markowitz

Joseph C. Markowitz has over 30 years of experience as a business trial lawyer.  He has represented clients ranging from individuals and small businesses to Fortune 500 corporations.  He started practicing with a boutique litigation firm in New York City, then was a partner in a large international firm both… MORE >

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