jossey-bass

Quick Takes: Magic Moments

The Master Mediator

By Robert A. CreoMarch 2016 | Print

Editor's note: Alternatives columnist Bob Creo, a Pittsburgh arbitrator and mediator, has been revisiting his catalog of CPR Institute website columns, originated a decade ago, in a Back to Basics series that he has subtitled “Human Problems, Human Solutions.” These updated and expanded columns are in print for the first time, building on new concepts and knowledge. He has revisited a wide spectrum of mediation room behaviors and practices. This month's column combines two of those early efforts.

Training former child soldiers from the Liberia civil wars at the United Nations Buduburam refugee camp in Ghana, a decade ago, was a rare privilege that broadened my perspective on the scope of conflict, human resiliency, problem solving, and the diversity of mediators' roles.

The mission was to reintegrate 100 former child soldiers and their families into communities in Liberia. The repatriation project encompassed training the people in vocational skills, providing psychological and other counseling services, while supplementing the basic needs of food, shelter and health care.

Enhancing conflict resolution skills for young men and women who had been kidnapped from their villages as children to wage war, and resolve conflict by violence, was essential for success.

I struggled, and continue to struggle, with attempts to characterize the mediation process by labels such as facilitative, evaluative, directive, settlement, or transformative. My experience is that mediation, and mediators, are all of these things at some point, and occasionally none of them.

As a trainer, then, and now, I have resisted these attempts at orthodoxy when applied to the richness and diversity of human conflict and problems. Even within the civil litigation system, there is a wide range of cases and claims that cause me to reject a routine or mechanical approach to mediating.

In Africa, although we trained judges and lawyers to be mediators within the legal system, the former child soldiers' problems and needs were a different category of human behavior and experience.

LAWRENCE'S STORY

One of the project participants was a young man named Lawrence. He was a singer, and participated in a formal group at the camp that performed in the area. He was upbeat. He radiated joy in his daily activities and interactions.

After a number of trips there, our volunteer team was curious about his story. What was his life in Monrovia, the nation's capital city? How did he get to Ghana? It was our custom not to explore or pry deeply into the refugees' backgrounds. A volunteer from a university had undertaken a project to compile all of the stories. We listened when they volunteered information, but generally did not explore too deeply into the past.

One evening over dinner Lawrence shared this story. He was a university student whose father managed a small hotel in Monrovia. When the city was overrun by a rebel faction, he joined his family, and many others, in the local church. The rebels surrounded the church and riddled those gathered with bullets.

Lawrence's parents and siblings were killed instantly and fell on top of him. The rebels left with the presumption that all inside were dead. Lawrence extricated himself and found two other boys who had similarly survived. Traveling only at night, the three of them navigated hundreds of miles to Ghana.

PERMANENCY AND TRANSCENDENCE

My African experience helped crystallize an insight that I articulate in presentations and training along the following continuum.

Disputes resolve without any participant changing any perspective on the relationship or beliefs. They accept the risk or costs of continued conflict and opt for closure.

Disputes resolve with some of the participants changing some of their perspectives or beliefs. These transformative thoughts are acted upon in the context of the dispute.

All disputants revise their perspectives and abandon truths that fueled the conflict, independent of the risks or costs of continued conflict. These mediations achieve transformative resolutions.

Occasionally profound, and permanent change, occurs in the historical narrative, the attitudes, the beliefs and the relationship between the participants. The fundamentals have not only been transformed but the entire conflict and relationship has evolved to a higher level of consciousness and action.

There is a permanency in a new outlook that improves core beliefs, goals and actions. The disputants, and usually the mediator, have transcended the problem. Everyone walks away with a renewed belief in the positive capabilities of human behavior.

THE MOMENT

Commercial and employment claims are not without transformative and transcending moments. Some experiences include:

All veteran conflict resolution practitioners have had what I call Magic Moments—those transcending experiences—in mediation. Sometimes it is in the outcome itself, other times it arises from an action of one of the participants. Some profound events have happened during medical malpractice claims, such as when:

  • The defendant physician and defense counsel hugged the mother of a severely cognitive-impaired baby at the time of settlement.
  • A defense adjuster told to a female high-earning claimant after settlement how much she respects her as being a strong role model and leader for women. This was done authentically and transparently because she did not want to say it during the process for fear it would seem insincere or manipulative.
  • A claimant and an adjuster going outside by themselves for a smoke, and bridging the final gap in the numbers. This was initiated by the young claimant—not the mediator or counsel.
  • A hospital conducting an in-service training for staff, with the patient harmed by negligence participating in the session.

Commercial and employment claims are not without transformative and transcending moments. Some experiences include:

  • A company foregoing an enforceable non-competition clause time period so that the former business principal could accept a position with a competitor rather than remain unemployed.
  • A small mental health care provider agreeing to re-classify all professional staff as hourly employees, not just the claimant, rather than salaried staff, so that they were all entitled to overtime, even when some of these employees were properly designated as salaried.
  • A construction company agreeing to repair all defective work in a residential project even if it involved the work of other contractors.
  • A university president re-hiring a non-tenured faculty member with a significantly improved compensation package to settle a claim of sexual harassment.
  • A couple recognized during the course of an auto accident claim that the spouse was suffering silently, running a family business that was now beyond his physical capabilities. As an ex-Marine, he was acting consistently with this identity of getting the job done regardless of personal sacrifice. The mediation sessions gave him the space to be candid and expose facts that had been minimized or avoided.

Field Craft

The challenge: Recognizing and empowering transforming moments.

The path: Treat every case with the same care and energy as if it's your first. Or your last.

The fallacy: Mediators can reach for the same set of tools and apply them indiscriminately to the task at hand.

Every mediator can share heart-warming tales of transformation and transcendence.

Famed U.S. psychologist and teacher Abraham H. Maslow noted that if the only tool you have is a hammer, then every problem begins to look like a nail. My experience is that even when you have more tools than a hammer, many problems initially still appear as a nail. The challenge for mediators is to be engaged and creative in each and every case while being able to discern which disputes should just be settled from those that provide transformative opportunities.

Being nimble creates enduring Magic Moments.

Editor's note: Readers can view a video featuring Master Mediator columnist Bob Creo discussing the Mediators Beyond Border's Liberian Initiative, “A Chance at Life,” on the U.S. Institute of Peace website at bit.ly/1PSF2JX. Mediate.com has an article on those efforts at http://bit.ly/20ra0Ei.

Biography

  • The author is a Pittsburgh attorney-neutral who has served as an arbitrator and 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.

Why Wait?

Get the current newsletter and
JOIN OUR EMAIL LIST
Sign up to receive exclusive content and special offers in the areas that interest you.
Send
Copyright © 2000-2015 by John Wiley & Sons, Inc. or related companies. All rights reserved.
Wiley