paradigm for addressing legal problems is a rational, analytical
approach. This is a Cartesian methodology, and it mimics the scientific
model by claiming an outcome can be determined objectively by applying
law to the facts.
Mediators intervene to take the legal dispute
and help translate it back to a human problem because there are more
possible solutions to human problems than legal disputes. The mediation
process is intuitive and grounded in the mediator's flexibility. Robert
D. Benjamin, a, Oakland, Ore., mediator and educator, calls this
L. Randolph Lowry, a founder of the Straus
Institute for Dispute Resolution at Pepperdine University School of Law,
in Malibu, Calif., and since 2005, president of Lipscomb University in
Nashville, articulates mediation theory and practice in a manner that
resonates with the experienced mediator. At an advanced mediator
training seminar in New Orleans about a decade ago, Lowry noted that the
mediator functions primarily as the mediation process manager.
start as human problems—but dispute resolution institutions make them
into legal problems. They're really “human problems,” looking for “human
solutions,” which is the theme of our revisits to the origin web
columns of the Master Mediator.
Substantive knowledge is not as
important to the skilled mediator. Lowry acknowledges settling many
cases where he really did not understand the underlying facts, issues or
conflict. Process skills trump substantive knowledge.
The classic ADR subject: Which is the better neutral, the one with process expertise or the one with substantive experience?
The classic lawyer answer: It depends on the case. (You knew that.)
The classic neutral's view: I may not know what is going on in this case. But I know how to settle it. Let's do this.
too, confess that I have nodded knowingly during many a presentation of
advocates when I was next to clueless about the science, facts or legal
platform of the dispute. I have mediated successfully dozens of medical
malpractice claims where I am unable to even pronounce some of the
medical terms and conditions.
Nevertheless, we mediators are better equipped than jurors or judges to address these complex disputes. Why is that so?
ADR practitioners have heard the mediator's role often framed as being a
channel, a catalyst, or a vehicle for transformation of the disputants.
The mediator removes strategic barriers or otherwise facilitates
uncovering the existing common ground between the parties.
mediator is not only a facilitator, but also functions as an explorer, a
devil's advocate, a trickster, a chameleon, an active listener, an
explainer and an all-round-good person!
Sometimes mediators offer
opinions and are evaluative or directive. Despite the controversy over
evaluation in some quarters of the mediation community, it plays an
invaluable role in moving parties forward to resolution.
reality is that all mediators start processing and evaluating from the
moment they are retained until well after the case is at impasse or
We differ in our practices about what—if anything—we do
on a transparent level about our evaluations. This reflective thinking,
interacting with our “intuition,” guides our mediation moves.
have termed this “Mediator Sense,” which is just another way to name the
bundle of knowledge gained from perpetual learning, being engaged with
human behavior, and the experience gleaned from mediating conflict.
sense is a concept that also has arisen frequently in the course of
these Master Mediator columns. For the most recent development of the
concept, see the column at “Back to Basics: The Playing Field,” 33 Alternatives 24 (February 2015).]
is an inherent tension between evaluative mediation practice and
traditional concepts of impartiality and neutrality. This has been
beaten to death throughout the profession, but in dismissing the debate,
here are a few points:
Strategic communications—those are the words
that are parsed carefully and delivered in a staged manner—are processed
with my head … and often discounted or ignored. Successful mediators
use their own humanity, which usually involves the ability to connect,
and to assist the translation of a legal problem into a human one. We
engage with the parties. We are sympathetic and empathetic.
My basic thesis is that the most successful mediators possess a persona emanating humanity to the participants in the process.
process gives permission for not only the mediator, but also the
participants, to humanize the conflict. The process gives permission for
a host of dynamics absent from adjudication. Creativity,
acknowledgment, recognition, apology, forgiveness, and choice all work
in the context of the interplay between uncertainty, risk, emotion, and
personal and community values. People make important choices in a
holistic manner during an asymmetrical mediation process.
recognizes the tension between the rigors of reason and insight and
perception, and in practice rejects classical notions of the dualism of
emotion and logic that underpin legal analysis.
Emotion and logic
are not binary—nor are they incompatible. One legal fiction driving the
public persona of the courts is the notion that justice is rational.
Jurors are instructed not to let sympathy or emotion dictate the result,
but everyone hopes for the opposite happening in their particular case.
reality, jurors act in a communal and holistic manner. Indeed, the
foundation of the jury system is the concept that jurors are peers of
those they judge and jurors impose societal values.
They vote on
their insights, their personal and communal values and their
experiences, even though grounded in the rhetoric of analysis as
compartmentalized by jury verdict forms.
Often the question for a
juror boils down to: Does the plaintiff deserve compensation and/or does
the defendant need to pay something as punishment? Jurors do strive to
follow the jury instructions and discharge their duties in the proper
While mediating the litigated case, however, all
participants must keep in mind that jurors decide as humans, and not as
robots or technicians. Human conflicts are resolved with human
author is a Pittsburgh attorney-neutral who has served as an arbitrator
or 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.
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