The Key “Moral” from Stories Mediators Tell

by Hon. Wayne D. Brazil (Ret.)

The theme of the 2014 Mediation Week was inspired by Stories Mediators Tell, a moving and illuminating collection of stories about the often dramatic facts of mediation life that Editors Eric R. Galton and Leila P. Love coaxed from a diverse group of experienced mediators to share with the rest of us (ABA Section of Dispute Resolution, 2012).

The ABA Mediation Week initiative is a celebration of the strides made in institutionalizing mediation as one of several appropriate dispute resolution processes. The 2014 ABA Mediation Week was held October 12-18.

Risk is one of the pivots on which many of these stories turn.  But it is not the kind of risk on which we (as mediators in litigated cases) are accustomed to focusing: risk of loss. Stories doesn’t hammer on risk aversion, and doesn’t teach techniques for capitalizing on it in order to generate ‘movement’ toward a deal.

Instead, the risk that imperils success in these stories is the risk that we will take ourselves too seriously, exaggerate our role and responsibility, and thereby disable ourselves from capitalizing on the skills, understandings and other “resources of person” that reside in all the other players in a mediation drama.

Stories reminds us, graphically, that it is the parties who are supposed to be at the center of the process. It also demonstrates that it is the parties who often can be the sources of the most valuable and, sometimes, crucial contributions to the viability of the process. It is the parties, after all, who best understand themselves. They know what they think, feel and need. And sometimes it is the parties who best understand one another – who most accurately identify the agendas, needs, and goals that the other side has set for itself.

How can we help the parties or earn and deserve their confidence if we do not ‘pause in their places’ long enough to learn these things --- if we are so obsessed with our own ‘orchestration of process’ that we hustle right past these significances?

These are not just philosophic issues. They implicate our ability to do our job.  We cannot ‘speak to’ a party without first learning his language, the language that will open him to hearing us.  And we cannot help a party ‘come to terms’ unless she understands that we understand her circumstances and needs – and have given them full play in our efforts to secure the most attractive proposals possible from the other side.

In several mediations in my recent past, it has been parties or their counsel who have suggested the kind of terms that would be most attractive to their opponent.  Or who have given me the best advice about sensitivities to acknowledge or to avoid when working with others.  Among many other lessons, Stories teaches us how much insight, intelligence and wisdom often resides in the other minds in our mediations – and how it is only by actively encouraging contributions from all of those minds that we can feel we are doing the best possible job.