Differences and Randomness: Some thoughts about mediation

By Professor Derek Auchie

The same, but different

We are all different from each other. Despite being part of the same species and being anatomically similar, in so many ways we are different.

This connects with mediation and the opportunities it provides for parties, but I will come back to that soon.

In what ways are we different?

We have different personalities, influenced by so many factors: upbringing, genetics, family dynamics, culture, religion, ethics, politics. This means that we all see life differently. This means that two people can see precisely the same situation completely differently. This applies even when two people are looking at the same documents (for example an e-mail). Words printed in black and white. Yet, nothing is black and white.

When we choose friends, we do so on the basis of shared perspectives and values. That is how we decide who we like (and who we don’t). However, sometimes we have no choice. For example in employment, we usually can’t choose our colleagues. Indeed, we usually don’t know in advance who they are, what their personalities are like. We apply for work based on our experience, qualifications and interests, and the terms of the position.  The same applies with moving into a new neighbourhood. We often have no idea who our neighbours are. Similarly with many commercial transactions: we contract with the supplier (of goods and services) based on price, terms, quality of goods/services, reputation. We may know nothing about the personalities of the individuals with whom we are dealing.

Then there are families. We can choose our partner or spouse, but not our siblings or aunts and uncles, our cousins or our in-laws.

Random personality and perspective clashes: this all leads to heightened prospects of a dispute.

Differences and perspective

This is where mediation thrives. It copes well with differences between people who are brought together randomly. The character Atticus Finch in Harper Lee’s novel To Kill a Mockingbird says to his daughter:

‘You never really understand a person until you consider things from his point of view, until you climb inside of his skin and walk around in it.’

Mediation allows you to do this. Climb inside the skin of the other party. Walk around in it. This comes from the fact that each party is in a room (virtual or not) with the other party and is asked to listen to what they have to say. To understand things from their point of view. Often, parties have never done this before. I mean, done it properly.

Hearing an explanation of the other party’s point of view first hand can often lead to one (or both) of two main outcomes, both of which I have witnessed in a number of mediations:

1. Misunderstandings are resolved. Often one party simply has the wrong idea about what the other party has done (or not done). A face to face meeting in mediation can resolve that.

2. Explanations are given. Usually, at least one party just doesn’t understand where the other party is coming from. Why did you do that? What were you thinking? Why didn’t you come and talk to me? What did you mean by that? It is difficult to see how these questions can be properly answered without a face to face discussion.

If misunderstandings are resolved and explanations are given (and understood, although perhaps not accepted), that gives a firm foundation for the other dynamics of mediation to be built on. It takes the venom out of the disagreement. That venom is what will have prevented agreement.

Once that is done, a number of other dynamics are in play.

‘I am reasonable, they are the problem’

The presence of a stranger in the room (the mediator) has a startling impact on behaviour. The parties want to present themselves as reasonable, and therefore the other party as being unreasonable. The truth? Inevitably, it lies somewhere in between.

Due to this dynamic, both parties actually present as reasonable, and are (almost) always on their best behaviour. This makes for a conciliatory atmosphere. The parties are not thinking only of themselves, but instead about how they look to this stranger. This takes the heat out of exchanges, allowing the issues to be discussed calmly. This is kind of ironic as mediators are not judging the parties or the outcome of the dispute. But it feels like they are, and that is all that matters.

Reality kicks in

Life is about choices and their consequences. Most people understand this. If they choose path A, maybe path B would have been better. But they need to choose one and stick to it. Facing the other party brings this home.  

I do not shy away from spelling out to parties in a mediation the possible consequences of not agreeing a solution. In fact, I believe that it is our duty as mediators to spell this out. I should say that I do not threaten or scare the parties. But the reality of an adjudicated solution can be threatening and scary. The parties need to know that this is the alternative. Mediation forces the parties to hear and understand about the value of an agreed solution (in terms of predictability, time saved, energy saved, face saved). This has to be done carefully, of course, but when done in a straightforward way, it focusses minds on a solution.

Evaluation is available

If all else fails, the parties can ask the mediator (who can invite this to happen) to switch to evaluative mode. This allows the mediator to make suggestions, and to provide reasons for those suggestions (in the context of what might happen if the mediation fails). I know this is controversial, but where a facilitative mediation approach is not working, what is there to lose? Parties may want to hear what a neutral and skilled stranger, who has heard both sides, thinks. After all, that is what they will be doing in an adjudicative process, so why not get the advantage of a reasoned non-binding view?

Conclusion

All of this is geared towards overcoming disagreements that can develop from the random interactions between people who are different.

We should remember the context of this, and of any discussion about dispute resolution process: the adjudicative process has been the default one by chance, not design. Imagine a world in which mediation is the default process, and adjudication is for disputes which can’t be resolved by mediation.

What a thought, eh? Totally random.