Yesterday I met a colleague in the hallway outside the courtroom. I was filling out paperwork and ruminating on a case that I’d just finished “processing.” There was no agreement. After a long mediation the plaintiff offered a settlement that the defendant turned down. My colleague also filed paperwork with no agreement. We talked about our recent spate of “no-settlement” cases. We know, through training, that no agreement is fine, sometimes optimal. As my colleague pointed out, sometimes we mediate agreements that we wish had gone before the magistrate, simply because we feel one or both of the parties agreed to something that they might later regret. Under my breath I said, “I WISH I could be the judge and settle these disputes myself!” My colleague looked amused. Perhaps I should go to law school, she wondered? No. I just want to fix things…fairly. This, of course, is my naughty mediator thought…a feeling I fight back and keep safely hidden away in the fantasy part of my brain. Wanting to fix things is a bad mindset for mediators.
A well-timed link to a colleague’s blog was waiting in my email in-box when I returned to my office. A mediator who also writes, teaches, and has started an online community for self-development types like myself, she has written a blog entry about her own desire to fix things – quickly, painlessly – rather than let her son process conflict by grieving, suffering, and searching for his own resolution. As my colleague points out in her blog, the desire to fix things is universal. This need can lead some mediators into the trap of seeing mediation strictly through the lens of problem solving. A mediator with this mindset enters a conflict as a directive third party, using her power to define the problem, offer solutions, and ultimately, guide the parties toward the “ideal” solution. “But they came up with it themselves,” a mediator might claim, hiding behind the smoke and mirrors of a statement that is less than the truth. If you ask the disputing parties their take on the session, they might say, “She led us to the trough AND she made us drink.” Ultimately, this problem solving orientation to mediating conflict subverts the spirit and purpose of true problem solving. The mediators‘ problem – a need to feel useful, helpful, and/or productive, may have been solved by this approach, but the clients’ problem, like a shape-shifter, may return in its prior incarnation once the session is over. What’s the alternative? As my colleague advises in her blog, the problem is how we see the problem.
How we see and respond to conflict informs how we approach mediation. If you chart conflict as a pinpoint on a relationship timeline, you see it for what it is, a natural occurrence in a relationship, an outgrowth of misunderstanding linked to poor communication, misunderstood actions, and/or poor choices. Conflict happens to all of us, all of the time. Something leads up to conflict, something follows it. As mediators, we enter the timeline at the point of conflict. Conflict isn’t the problem, it’s a symptom of a problem that only the parties at the table have the full information to process. As mediators we have to figure out how to sit in the middle of the conflict and be of use. Seeing conflict not as a problem but as an opportunity orients us to the possibility that conflict can lead to growth and transformation. This informs how we view our mediator role. When we see our role as enhancing the quality of the connection between the disputing parties, by being fully present, engaged, reflecting, summarizing, stepping in and stepping out, appropriately, sensitively, and ultimately with an eye on empowering the parties to find their own acceptable agreement, OR NOT, we are aligned with the values of transformational mediation.
The takeaway is that mediators have an opportunity to strengthen the disputing parties’ ability to transform – and be transformed by – conflict. As Bush and Folger describe in The Promise of Mediation, mediation is about “empowering the parties to grow calmer, clearer, more confident, more organized, and more decisive – and thereby establish or regain a sense of strength and take control of their situation.” Mediators don’t get to fix conflict. But, on a good day, the parties exit the mediation with a different perspective. They sat, talked, listened and learned. And (note to self) this transformation might not have been possible if I, the mediator, had “fixed things…fairly.”