The Road Less Traveled
Mediation is a process that falls under the heading of alternative dispute resolution. Unlike litigation or arbitration that follow a formalized process, mediation is informal to the extent it provides maximum flexibility. It still uses a defined process, but what makes it work is that it cedes to the parties in a dispute the burden to carry the means to success, or failure.
It works for the participants because it allows the parties to resolve their disputes in confidence and with the assurance that at the center of this informal process is a third party who is entirely neutral. The third-party neutral, if chosen correctly, does not have any relationship with those in dispute, either in the past or the present.
A well-established truth drives this process. Mediators don’t decide who is right or wrong; they are trained to help parties discuss their differences in a manner that allows the parties to pursue alternative solutions. The parties find resolution through their efforts. Success is often achieved at significantly less time and cost, and in those rare cases where mediation fails, the parties still have recourse to the more traditional methods.
The key to this process is neutrality. Unsurprisingly, when asked to explain the concept of neutrality, people have widely different interpretations. Even among mediators, the term is defined differently and applied according to their definition. Some mediators see it as avoiding the risk of favoritism by not taken sides. Others see as keeping the scales of justice balanced.
A couple of years ago, I ran across a brief article by a fellow practitioner by the name of Joseph Markowitz. The reason his explanation struck such a strong cord is that it comes closest to defining how I approach mediation. In his article, he stated that …”I take it to mean being indifferent toward the outcome of the process, leaving the parties to achieve a resolution acceptable to each side, but assisting both sides in satisfying their interests to the greatest extent possible.
Too many mediators see their role as more interactive and give casual respect to the fact that mediators have a different purpose than judges or arbitrators, at times coaching one side or the other on their negotiating tactics, and at other times playing the devil’s advocate. It’s more of a shifting partiality than an attempt to remain impartial.”
I sometimes hear from others in the field about outcomes where the parties were not satisfied with the results and proceeded to litigation. These failures do not occur often, but they happen often enough that many companies remain skeptical about the long term benefits of mediation.
I am of the firm belief the approach I use is the one that brings the most success. The reason being that it gives the parties the unfettered opportunity to craft their solutions, and creates the strongest sense of accomplishment by those most directly involved in the conflict resolution.
Mr. Markowitz goes on to say that mediators who are not married to any outcome are not blind to the issues, but neither do they try to keep the scales balanced. When a mediator is indifferent to the result, the parties will almost always recognize that person is someone the other side will listen to, and that is what is essential.
Regardless of which side of the table you are sitting on, you want a mediator the other side is willing to listen to because that means he or she will listen to you. It becomes clear early that the third party neutral does not have “an ax to grind,” and immediately builds authority.
The mediator’s authority increases if both sides come to see the mediator as someone familiar with issues similar to theirs.
This is particularly true in business settings. Most of what I write about on the subject of mediation is in the context of business situations, and the most common type of conflict that requires the help of a third-party neutral is interpersonal conflict.
To quote another practitioner I follow, the conflicts “are fraught with challenges.” What he was saying is beware, there be landmines. The landmines are the habits and behaviors that drove the dispute to the point it required the assistance of a third-party neutral. Dynamic work environments produce stress, and team interaction creates friction that, in turn, drives counter-productive behaviors, and all of which are driven below the surface by the time the mediator shows up.
From my perspective, the successful mediator creates that sense of authority early by establishing that he or she has no stake in the outcome. It allows the behaviors and habits that drove the conflict to be set aside as each side will quickly see those tendencies will work against them.
Most lawyers who also mediate don’t follow the path of indifference to the outcome, nor do many mediators who come from a social science background. They take the approach of either trying to keep the scales of justice balanced, or using their experience to “help” the process along.
Those practitioners that take an approach similar to mine can see the broader outlines of the dispute more quickly, and by the judicious use of questions, create opportunities for the parties to trust the process and become comfortable looking at alternatives solutions on their own.
Food for Thought – Do not confuse motion and progress; a rocking horse has motion but does not have any progress. (Alfred Montapert)
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