How We Connect The Disconnected And Engineer Agreements

THE SOURCE OF THE MEDIATOR’S POWER:
HOW WE CONNECT THE DISCONNECTED AND ENGINEER AGREEMENTS

By
Jan Frankel Schau

Dissolution of a marriage after twenty years, the end of violence and bloodshed between two neighboring countries, the unwelcome severance of a career of service for the payment of a year or two of salary:  how do mediators have the power to solve these issues in a dialogue or sometimes a single day?  The answer lies not in our neutrality, but the converse:  the mediator takes a valuable role as a “third sider”[1] in a dispute, serving to change the narrative or mythology of the disputing parties, hold optimism for creative change and ultimate resolution, and strictly adhering to a carefully crafted process designed to reach resolution.

How Did We Get Here?

The inquiry of the source of the mediator’s power must begin with the source of the mediator’s involvement in the dispute.  Where the mediator, for example, is brought in at the behest of a judicial officer, in a litigated dispute, the power comes from the Court itself.  There is a real consequence for a failure to obey the court’s recommendation or referral to mediation, and therefore all parties (and their agents or attorneys) come to a mediation prepared to cede some degree of power or control to the mediator.

On the other hand, in many instances the community itself, acting through the government or some outside agency, recommends a mediator to explore the possibility of a settlement of long-standing disputes.  In those cases, the mediator derives her power from the community or the disputants’ peers.  In that case, according to William Ury, our role is to influence “[t]he parties primarily through an appeal to their interests and community norms.  The third side possesses the power of peer pressure and the force of public opinion.  It is people power.”[2]

Finally, there are those mediations which are purely voluntary, where the parties recognize and acknowledge to one another as well as a third party that they are unable to solve the dispute on their own.  In those cases, the parties actually give the mediator her power, by giving away some of their own power in the service of a settlement of the dispute.  By undertaking a mediation, the parties have already agreed to a more constructive process than the conflict had produced up until that time.  They have undertaken a mutual interest in transforming the “conflict” to a more constructive process, with the mediator acting as the “agent” of that transformation.

In a fascinating talk given by Ambassador Dennis Ross, Special Coordinator for the Middle East under both Presidents George Bush, Sr. and Bill Clinton for the Association of Business Trial Lawyers of Los Angeles, February, 2007, the theory of strict neutrality of a mediator was summarily debunked in the context of diplomatic negotiations.  Instead, Ambassador Ross argued that the mediator must have “real weight and authority” to broker any settlements on the world stage.  Indeed, it is the influence that is available by virtue of the special relationship the mediator has with the parties engaged in the dispute that makes him an effective broker.[3]

The Mediator’s Role as a Third Sider:

William Ury argues that the third sider strives for a resolution that satisfies the legitimate needs of the parties and at the same time meets the needs of the wider community.  In other words, the goal of the third side is “a triple win”.[4]  He characterizes the Third Side as representative of both outsiders (for example neighbors, neutrals and bystanders) as well as “insiders” (as in family, friends and the parties themselves).  The Third Side, acting as mediator, can literally see both sides from both the inside and out, and to the left and the right.

Ury tells the story of the old legend that:  “If one person tells you that you have a tail, you laugh.  If a second person tells you, you laugh.  But if a third person tells you, you turn around and look!”[5]

Mediators gain their power both from the perspective only one on the “third side” can achieve, and from their goals or objectives.  According to Ury, the mediator serves three purposes:  representation of the community/peer perspective, serving as a container for conflict, and resolving the conflict.

In the first instance, by representing the community’s perspective, the mediator can help to prevent conflict from escalating.  So, for example, by our very entry into the room, and request that the dialogue be directed not at one another, but at a “third side”, the mediator, the tone of the communication can change, sometimes dramatically.  Indeed, the voice levels, language employed, and even facial expressions are noticeably different when directed at a “non-party” than when directed across the table between the disputants directly.  In an interesting experiment, researchers found that even where the mediator was entirely silent, the tone of the disputants changed dramatically in the presence of a third party.

In the second instance, the environment of a “safe space” to communicate needs and wants and hurts and misunderstandings, serves as an appropriate and indeed necessary “container” for the conflict.  By providing that third set of ears and eyes, the mediator has the power to create a safe container for escalating conflict to be laid safely upon the negotiating table.  As representatives of the surrouding community, we are called upon to act as a “container” for the conflict which would otherwise be escalating unfettered.

Finally, by acting as the fulcrum for the balance of power and interest, the mediator has the opportunity to resolve the conflict in ways in which the parties, stuck in their own conflict, are often unable to achieve.  By being “another side”, we hold the power of perspective:  we can view conflict differently because we see it from another vantage point.  By physically sitting to the right or the left, or in between the two disputants, for example, we can oftentimes hear or see things differently than the other party who is seated directly across the table.

The Power of Changing the Narrative

Perhaps the most powerful tool in the Mediator’s arsenal derives from her unwavering optimism that the history of conflict can be changed to a new and revised (and improved, hopefully) “story”.  The mediator alone has the power to re-write the future of the parties’ relationship by offering creative solutions and options for change.

According to Ambassador Ross, one of the chief roles of the Diplomat is to help the parties see the desirability of giving up their historic mythologies and getting them off of their “needs” and onto their “wants”.  This is only made possible through the Diplomat’s unwavering optimism.  Ury characterizes it as:  “from the beginning of the relationship, we believe there is a possible end where both parties continue to exist, but differently.”[6]

The power of a mediator also comes from accepting the responsibility for resolving the conflict.  Too often, we are the only ones who consider “peacemaking” our job.  Ury tells a story of a military plane who feared WWIII was about to begin and wanted to communicate directly with the Kremlin.  The State Department offered a translator, but was unable to make the telephone connection.  Why?  Because the Department of State did not include “waging peace” as “their job”.[7]

The Power of the Mediator Comes from the Value Placed On The Process of Dialogue

Mediating effectively takes both practice and patience.  It takes a dogged determination to reach the objective of settlement.  The mediator’s power comes from sometimes being the only optimist in the room.  Knowing that although the parties may be worlds or thousands of dollars apart, most cases they mediate resolve and this one is likely to also.  The disputants rarely have the experience of other disputes, and therefore are unlikely to have the same degree of confidence that the mediator holds.

Because the mediator has that confidence, based upon her experience successfully resolving hundreds of disputes, however, contentious on the one hand, and dissimilar on the other, the mediator’s power comes from the willingness to take risks towards the end point.

The Mediator has the power to time and sequence the process.  She alone has the power to design and orchestrate the right moment for the climactic “joint session”, the separation of the parties, the necessary breaks or pauses in the negotiation for release of tension or emotion.

In a recent Public Appearance at the University of Judaism in Los Angeles, famed news reporter Walter Cronkite took credit for orchestrating the MidEast peace talks between Egypt and Israel.  He related the story that he inquired of Anwar Sadat why he had never chosen to engage in discussions with Israel.  His response was:  “They have never invited me to talk.”  When he found the Prime Minister of Israel to have no objection, it was Cronkite who orchestrated the two world leaders to come together.  Imagine a newscaster brokering a discussion of this magnitude!  But indeed, it was he alone who held the power to invite the necessary parties to the negotiating table.  He was in the right place, with the right idea.  And each party had a relationship with him of trust and confidence.

In another example, a colleague in Orange County, a retired business man in the trucking industry, now acting as a full-time mediator, sets up his mediations with all parties seated alongside one another and facing the mediator.  He is a rotund man, with an endearing Brooklyn accent.  When he sets the stage for a mediation, he is often met with resistance.  The parties are unaccustomed to this “layout” in their litigated disputes.  And yet, he achieves a sense of authority, and therefore confidence that he is taking the lead in designing the process under which they will proceed.

The Mediator’s power also comes from the value of respectful dialogue.  Talking out differences leads to collaboration towards a mutual goal.  Talking is the antithesis to violence.  Just as every parent knows, when children learn to “use their words” they are often able to express themselves in ways that are far less emotionally volatile (screaming, crying, kicking, biting) than pre-verbal conduct.  So too with adults, dialogue, which is by definition “dual”, allows for at least two perspectives to be heard.

The mediator also holds the role of “timekeeper”.  This means that the mediator may force the parties to close the negotiations at a certain point, or call it an impasse.  This is also a risk the mediator takes.  It is likewise a key tool to being the effective broker which the parties need.  Oftentimes in protracted negotiation, the hardest part begins when the parties presume to memorialize the agreements they’ve made.  After eight hours of negotiation in an employment litigation matter, it is often another two hours negotiating a one-page agreement to settle.  Some of this is because the parties are simply not ready to “disconnect” from one another.  In the example of a long-time employment situation, or a marriage, or even neighbors, the parties final “severance” of the dispute takes time.  For this reason, the mediator needs to be both sensitive, on the one hand, and firm on the other to allow the parties to save face and move forward towards a new reality beyond the protracted conflict.

Ambassador Ross took a step further and suggested the parties “test” their conviction, by making announcements to the public of their intent.  In this way, both Palestinians and Israeli’s had the opportunity not only to gain public approval, but to make a very public commitment to one another to pursue the peace process they had undertaken privately up until that point.

Finally, the Mediator gains her power by the sheer willingness to listen, to question, to probe, to offer respect to disparate views, and to make an earnest attempt to understand the basis for each side’s position.  In this way, a parent, for example, can step in to attempt to equalize the power between an older and a younger child.  An employer can direct his supervisor to treat his workers more fairly.  Simply by listening, and appreciating the weaker/less represented individual or group, the mediator can begin to re-balance by speaking on their behalf, or listening to their pleas and relating them to the other, who often has not heard them directly or indirectly until that time.

The power of listening, also lies in the trained ear to probe, to discern subtle cues, to dig beneath the surface in order to understand, and later communicate the roots of the problem.  As in emotional or psychological therapy, it is often only when the deep roots of the conflict are understood that the solution becomes apparent.  For this reason, the Mediator gains power from an apparent surrender of his own agenda.  Instead, the Mediator is well-served by taking a step back and inviting the disputant to “[h]elp me to help you.  What are your needs here?”  This type of rhetorical questioning serves to demonstrate the true objectives of the parties as well as the mediator’s appreciation for the unique perspective of each side of the conflict.

The real power, then, comes, not from the active engagement in what we think of as “mediation”, but in the silence that comes with patient listening, thoughtful consideration, and optimism for a different future.  The perspective we are able to offer as the “third side” is no more than the mirror of the perspective of each side to the other.  With creativity and determination, the mediator can achieve all three goals:  to prevent violence or conflict from escalating, to resolve the actual conflict presented, and to contain the violence or dispute so that peace and resolution will be lasting.

[1] Much of this article is based upon “The Third Side” by William Ury, Penguin Books, 2000.
[2] Ury, supra, at page 15.
[3] Paraphrased from Ambasssador Dennis Ross’ Speech, ABTLA, February, 2007, Los Angeles, Ca.
[4] Ury, supra, at page 17.
[5] Ury, supra.
[6] Ury, supra.
[7] Ury, supra.

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