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You are the Technique-Notes of a New Mediator

My first day of mediation training in the Spring of 2004, progressed in somewhat the same fashion as my first year of law school. I remembered struggling painfully with the theoretical bases of jurisdiction in Pennoyer v. Neff on day one of Civil Procedure only to be told the following week that Pennoyer was no longer the law. “Why,” I remember thinking, “did we even bother with Pennoyer when this Buckeye case about an exploding boiler now seems to be the law. Or is it just another chimera as well?”

I shouldn’t have been surprised that my first mediation class would bear an eerie similarity to those first few weeks of law school. I should have realized I was about to be trained to stop “thinking like a lawyer.” It was easy for me to be evaluative – after all, I had twenty-five years of legal practice in my back-pack. I learned Dr. Cialdini’s “Principles of Ethical Influence” – Reciprocation; Scarcity (the rule of the rare); Authority; Commitment; Empathy; and, Consensus. These power principles were followed by questions typically asked by law professors – what about neutrality; what about choice; what about listening to the parties; what about self-determination?

The facilitative style seemed to be the answer to these questions. A mediator could create an atmosphere of hope and safety, after which the parties would ideally locate areas of agreement while sharpening the precise contours of the actual dispute. Here, the mediator was follower or helper on the path to resolution, like the protective figures who appear early in the hero’s journey to enlightenment. Joseph Campbell taught us that these often supernatural figures take a wide variety of forms — wizard, crone, dwarf, fairy godmother. Some actually accompany the hero on his journey, assisting in a series of tests and generally serving as a loyal companion. So does the facilitative mediation “helper” provide support, reflection, empathy and courage to stay the course of the negotiation, no matter how painful.

But, says the transformative crowd, these “facilitators” do not empower the parties. Facilitative mediators, they say, too often present themselves as wizards who intrude upon the parties’ conflict with their own agenda – usually “resolution be damned, let’s settle this thing!” Transformative mediation is a bona fide theory, say its adherents, not just another arrow in the mediator’s quiver. The transformative mediator lets the session wheel out of control if that is where it is eager to go. The parties are permitted to be combative, shout insults and engage in ad hominum attacks. Conflict is not seen as a state to be avoided or suppressed. Like a loving mother following the course of her child’s flu, mediators should provide the parties with opportunities to rest; lots of fluids and a metaphoric place to lay their heads as the conflict runs its natural course.

After a year in practice, I continue to veer wildly among these options. I try to expand the pie; gamely reach for consensus; urge the parties to proceed with respect. I make a concerted effort not to suppress the expression of rage, bitterness or resentment.

When I bring my questions and concerns to the few master mediators I know, they tell me the same thing. “You are the technique,” they say. “Just stay in the process. Don’t guess. Ask questions. Listen. Don’t give up before the miracle of mediation happens.”

Just last week, I had another in a series of mediations I am coming to see as the unintended consequence of the still rising L.A. real estate market – the collapse of caring family relationships in the presence of an unexpected financial windfall. The basic story is the same. One or more members of a large, often immigrant family purchases a small piece of property in a run-down neighborhood. For years, even decades, this property houses newly married couples saving for their own home; elderly parents no longer able to care for themselves; and, cousins, aunts and uncles who have just arrived on American soil.

When I first see them, the families are trudging into a downtown Superior Court room with their respective attorneys, avoiding cherished children and beloved parents, glaring at brothers and sisters across the courtroom divide; bursting into tears and running for the door. They are wounded, angry, incomprehensibly demoralized. All too often, their attorneys want to leave them outside the conference room, silence them, control the high emotions they bring to the scene – what must be one of their greatest human failures.

I let the lawyers do what they want now – to leave the family outside. There are two mediations to be conducted – one in which the lawyers’ outraged sense of injustice is expressed; re-considered; and, re-channeled toward the resolution of the whole rather than in victory to the half. Although this work is often both evaluative and facilitative, the attorneys experience transformation as well – they too long for the tools to resolve these matters without further procedural and strategic warfare.

Having side-lined their clients, they are unable to convince them to accept the “deal” struck behind closed doors. Then they come back to me.

“Can you convince my client to see reason ?” they ask.

“Reason?” I reply. “Maybe. I can talk to them about their choices; their family; their losses; their anger.”

Last week, a mother in her fifties, Mrs. Bouchet came in. Her adult children were seeking to quiet title to the family home in their names. The “children” said their mother long ago authorized one of her daughters to sign Mrs. Bouchet’s name on a grant deed. That was when she’d taken flight from an abusive husband and left her grown children and the family home behind.

After everyone but Mrs. Bouchet accepted the “deal” struck without her, I sat quietly in the jury room while she cried. We talked quietly together about loss and fear. About love and family. About the material and the spiritual. We talked about the house as a metaphor for the damage the family had suffered; a repository for the children’s feelings of victimization and abandonment. Finally, the tears burst into wails, “but they stole my house; they stole my house.”

“I know they did,” I responded. “I know they did,” passing a Kleenex across the scratched wooden table.

“My house, my house myhousemyhousemyhouse,” she choked, her chest heaving with the loss.

“I know I know IknowIknowIknowIknow,” I said in cadence with her. It was no longer language. It had become music, like the call and response of the Southern Baptist Church. Call of grief; sound of comfort; call of anguish; sound of understanding; call of loss, sound of return — call, response, call response callresponsecallresponse.

After her sobs subsided, Mrs. Bouchet dabbed her wet face with the Kleenex.

“I’ll give them the house,” she finally said, “But please tell my children I’m doing it only so they will be safe.”

Safety. It had been the one comfort this mother had never been able to provide to her children. Here in the courthouse where we all expect reason, the irrational bud of hope was once again pushing itself up through the cracked earth.

“Yes,” I say. “I will tell your daughter that you want her to be safe. That you’re settling the lawsuit so she can be safe. It is an act of great generosity. With this sacrifice, you begin to bring peace to your family.”

Mrs. Bouchet smiled as I shake her hand and that of her grateful attorney. Grateful this troubling case is settled. Grateful he was not required to have this difficult conversation. Grateful his client seemed comforted rather than “beaten” by the mediator in an effort to “see reason.”

As I left the courthouse, I gave thanks, yet again, for the blessings brought to me by this odd and varied new occupation. One that requires everything I have to give and all I must learn to receive. One that asks of me only to stick around around until the miracle happens.


Victoria Pynchon

Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all… MORE >

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