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Theory and Practice and the Neutral's Persona

The Master Mediator

By Robert A. Creo November 2015
Editor's note: Longtime Alternatives columnist Bob Creo, a veteran Pittsburgh neutral, is revisiting his classic CPR Institute website columns of a decade ago in a Back to Basics Series that he has subtitled “Human Problems, Human Solutions.” These updated and expanded columns, in print for the first time, began late last year. He has revisited and re-examined mediation-room techniques and practice issues. This month, he returns to the second column he wrote at www.cpradr.org a decade ago, and brings it forward.

The paradigm for addressing legal problems is a rational, analytical approach. This is a Cartesian methodology, and it mimics the scientific model by claiming an outcome can be determined objectively by applying law to the facts.

Mediators intervene to take the legal dispute and help translate it back to a human problem because there are more possible solutions to human problems than legal disputes. The mediation process is intuitive and grounded in the mediator's flexibility. Robert D. Benjamin, a, Oakland, Ore., mediator and educator, calls this “systemic intuition.”

L. Randolph Lowry, a founder of the Straus Institute for Dispute Resolution at Pepperdine University School of Law, in Malibu, Calif., and since 2005, president of Lipscomb University in Nashville, articulates mediation theory and practice in a manner that resonates with the experienced mediator. At an advanced mediator training seminar in New Orleans about a decade ago, Lowry noted that the mediator functions primarily as the mediation process manager.

Conflicts start as human problems—but dispute resolution institutions make them into legal problems. They're really “human problems,” looking for “human solutions,” which is the theme of our revisits to the origin web columns of the Master Mediator.

Substantive knowledge is not as important to the skilled mediator. Lowry acknowledges settling many cases where he really did not understand the underlying facts, issues or conflict. Process skills trump substantive knowledge.

‘Most of All, I Am Human

The classic ADR subject: Which is the better neutral, the one with process expertise or the one with substantive experience?

The classic lawyer answer: It depends on the case. (You knew that.)

The classic neutral's view: I may not know what is going on in this case. But I know how to settle it. Let's do this.

I, too, confess that I have nodded knowingly during many a presentation of advocates when I was next to clueless about the science, facts or legal platform of the dispute. I have mediated successfully dozens of medical malpractice claims where I am unable to even pronounce some of the medical terms and conditions.

Nevertheless, we mediators are better equipped than jurors or judges to address these complex disputes. Why is that so?

TRANSFORMING AND EXPLORING

Most ADR practitioners have heard the mediator's role often framed as being a channel, a catalyst, or a vehicle for transformation of the disputants. The mediator removes strategic barriers or otherwise facilitates uncovering the existing common ground between the parties.

The mediator is not only a facilitator, but also functions as an explorer, a devil's advocate, a trickster, a chameleon, an active listener, an explainer and an all-round-good person!

Sometimes mediators offer opinions and are evaluative or directive. Despite the controversy over evaluation in some quarters of the mediation community, it plays an invaluable role in moving parties forward to resolution.

The reality is that all mediators start processing and evaluating from the moment they are retained until well after the case is at impasse or resolved.

We differ in our practices about what—if anything—we do on a transparent level about our evaluations. This reflective thinking, interacting with our “intuition,” guides our mediation moves.

I have termed this “Mediator Sense,” which is just another way to name the bundle of knowledge gained from perpetual learning, being engaged with human behavior, and the experience gleaned from mediating conflict.

[Mediator sense is a concept that also has arisen frequently in the course of these Master Mediator columns. For the most recent development of the concept, see the column at “Back to Basics: The Playing Field,” 33 Alternatives 24 (February 2015).]

There is an inherent tension between evaluative mediation practice and traditional concepts of impartiality and neutrality. This has been beaten to death throughout the profession, but in dismissing the debate, here are a few points:

  • Parties may self-determine the level of activism they want from the mediator. This is the function or effect of a free market where people can hire their own mediators and task them accordingly. If they want a mediator to call balls and strikes like an umpire, so be it. No one would claim that an umpire has lost impartiality by doing his or her job of objectively making calls.
  • In mediation, these calls may influence the parties and the ultimate outcome, but they are still advisory and nonbinding.
  • Thinking back to all the roles of mediator, at times, I am all of the above and none of them. Most of all I am human. I listen and feel any authentic communication.

Strategic communications—those are the words that are parsed carefully and delivered in a staged manner—are processed with my head … and often discounted or ignored. Successful mediators use their own humanity, which usually involves the ability to connect, and to assist the translation of a legal problem into a human one. We engage with the parties. We are sympathetic and empathetic.

‘DYNAMICS ABSENT FROM ADJUDICATION’

My basic thesis is that the most successful mediators possess a persona emanating humanity to the participants in the process.

The process gives permission for not only the mediator, but also the participants, to humanize the conflict. The process gives permission for a host of dynamics absent from adjudication. Creativity, acknowledgment, recognition, apology, forgiveness, and choice all work in the context of the interplay between uncertainty, risk, emotion, and personal and community values. People make important choices in a holistic manner during an asymmetrical mediation process.

Mediation recognizes the tension between the rigors of reason and insight and perception, and in practice rejects classical notions of the dualism of emotion and logic that underpin legal analysis.

Emotion and logic are not binary—nor are they incompatible. One legal fiction driving the public persona of the courts is the notion that justice is rational. Jurors are instructed not to let sympathy or emotion dictate the result, but everyone hopes for the opposite happening in their particular case.

In reality, jurors act in a communal and holistic manner. Indeed, the foundation of the jury system is the concept that jurors are peers of those they judge and jurors impose societal values.

They vote on their insights, their personal and communal values and their experiences, even though grounded in the rhetoric of analysis as compartmentalized by jury verdict forms.

Often the question for a juror boils down to: Does the plaintiff deserve compensation and/or does the defendant need to pay something as punishment? Jurors do strive to follow the jury instructions and discharge their duties in the proper manner.

While mediating the litigated case, however, all participants must keep in mind that jurors decide as humans, and not as robots or technicians. Human conflicts are resolved with human solutions.

Biography

  • The author is a Pittsburgh attorney-neutral who has served as an arbitrator or mediator in the United States and Canada since 1979. He conducts negotiation behavior courses that focus on neuroscience and the study of decision-making, and was recognized by Best Lawyers in America as 2014 Mediator of the Year for Pittsburgh. He is the author of “Alternative Dispute Resolution: Law, Procedure and Commentary for the Pennsylvania Practitioner” (George T. Bisel Co. 2006). He is a member of Alternatives' editorial board, and of the CPR Institute's Panels of Distinguished Neutrals. His website is www.robertcreo.com.


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