I would like to highlight the story titled, “The Other Sarah” in the book Stories Mediators Tell. The mediation takes place between the father of a woman, Sarah, who was killed while riding her bike and the driver of the car that killed her. Although the police did not find the driver guilty of Sarah’s death, the father did. After reading this story I felt it truly encompassed the key aspects of facilitating mediation: flexibility in terms of approach and time management, as well as, the importance of good-faith on behalf of the parties.
The mediator begins the session by talking with the parties and their respective lawyers to gauge where everyone was mentally and emotionally. The father was very angry and revengeful while the driver was full of remorse and emotion. The lawyer of the father believed mediation was pointless because his client wanted something he could not get, which was an eye for eye. On the other side, the lawyer of the driver was concerned about his client’s emotional state and worried she may say something to incriminate herself.
The mediator does a great job of being flexible by recognizing the concerns of the parties while still controlling the situation. He saw that a joint-meeting session was not yet suitable because the father was not participating in good-faith, he was seeking revenge. So the mediator continued to caucus the parties for hours on end, speaking with them about their current feelings regarding Sarah’s death. The topic of conversation was independent from negotiations regarding settlement. The negotiations did not begin until the mediator thought it would be constructive to bring the parties together, which did not happen for several hours. Once together the parties took control and were able to engage in conversation and take part in the outcome.
When I practiced mediation in small claims court I often felt rushed against the clock. In certain situations I could tell there was too much emotion to begin negotiating or there was a lack of understanding about the process. Although some of these cases still settled, it was very difficult to be flexible in my approach and time management which could have brought about a higher feeling of satisfaction among the parties. The ability to spend time on the intangible items is just as important as the tangible items and if not addressed can affect the outcome of the process.
Some of the small claim cases were forced to try mediation before seeing the judge. I think this completely contradicts the purpose of good-faith and the value it has in the mediation process. In this setting, because we lack flexibility and cannot spend all day focusing on intangible areas, parties who are not participating in good-faith can hinder the process further.
The mediator from this section states two rules that capture the necessity for flexibility and good-faith: “Ask, ask, ask,; listen, listen, listen,” and “we must work within the cauldron of the mediation as it exists, not as we wish it might be.” If we go into the mediation believing we need to gather more information and meet the parties where they are, it forces us to be on our toes with how to structure the mediation as it continues and I believe that is a great start to a successful mediation.
Yes, it takes so much psychic energy and fortitude to mediate (and to participate in) these kinds of tragic disputes. You are so right about flexibility and listening being key to the process.
ReplyDeleteYour post made me think of The Sweet Hereafter and the lack of dialogue that happened in the wake of the accident -- people talked some, and the lawyer traveling around from family to family was sort of like "community building" (in the weakest sense), but there was no opportunity outside of the funerals for gathering and working through this shared loss. Even at the funerals, Dolores (the one everyone ended up blaming) attended but did not speak with anyone (and according to her had no intention to).
I keep thinking back to The Sweet Hereafter, too. I wanted so much for there to be a community meeting, where everyone could speak honestly and come back together as a community. Dolores needed to be heard and accused, to remind everyone that it was the whole community affected. I think everyone got so wrapped up in their own pain, that they forgot how to care about each other. If only we could force people to hug and make up. Hugs have a lot of power.
DeleteI absolutely agree with Sequoia that to be an effective Mediator, one has to be a good listener and communicator. This is the part of the case that impressed me the most. At the very last paragraph of the case, the author wrote " The value of the mediator is gathering information like a miner searching in streams for nuggets of Gold. Find those little nuggets of gold along the way, put them in your metaphorical pocket, and choose the right time to trade those nuggets for something much more valuable--peace. P 49. This case was a success because she knew when to trade the Gold for Reconciliation.
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