Method Acting

Recently I was having a discussion with a successful young litigator. He was very complimentary regarding the Los Angeles Superior Court mediation program, some of the better neutrals he has worked with and the general success rate in accomplishing settlement of his cases. Somehow the discussion got around to my difficult cases as a mediator and how I had dealt with them. I selected a recent very challenging planned community living (homeowners' association) case that involved over 100 units and two entrenched groups that had been in dispute for over a year where mediation had failed when initially attempted at the beginning.

The young lawyer was incredulous when he discovered that I had mediated with the 10 representatives from both sides all in the same room. In discussing this with him further, I realized that his idea of "mediation" according to his experiences was that the disputing parties were always separated, and the "mediator's" job was to shuttle back-and-forth attempting to get the parties to agree from a distance. This brought to mind that it might be helpful to discuss the true magic of the mediation process when practiced in its purest sense.

It generally is recognized that there are four mediation models: Basic problem solving (Moore), transformative (Bush and Folger), humanistic (Umbreit) and narrative (Winslade and Monk).

In the basic problem-solving model, the process usually is "settlement driven"

and directive with little real preparation. The goal is "let's make a deal," and there usually is no provision for follow-up meetings. No consideration is devoted to emotional or relationship problems created by feelings of disrespect, betrayal, abuse, etc., allowing the underlying emotional conflict to continue. The mediator relies solely on the standard approach such as active listening, paraphrasing and summarizing, etc.

In the transformative model, genuine empowerment and mutual recognition (respect) are emphasized and compassion is encouraged. The goal is a clearer path to transformation of the relationship and then resolution of the conflict. Each party is urged to understand the unique perspective of the other. The primary goal of this method is to transform and heal the relationship in conflict.

The humanistic model taps into the "intrinsic transformative and healing potential of mediation." It is a "dialogue-driven" approach that is non-directive utilizing pre-mediation conferences conducted by the mediator with each party separately. Its designer, Mark Umbreit, refers to it as a "genuine transformative journey of peace-making that is grounded in compassion, strength, and our common humanity." This method emphasizes "speaking and listening from the heart" along with the extensive use of silence when necessary. The mediator deeply reflects on what has been said by the parties as well as what he or she is feeling and experiencing. A common thread to this method is the consideration that "reflective listening skills" may interfere with genuine communication between the parties because the mediator's approach may cause the parties to feel that his or her actions actually are "intrusive and insensitive, if not obnoxious."

One of the underlying purposes of the premeditation conferences is to make the parties feel safe to go to the subsequent joint session and face each other. Other aspects of the premeditation conference process are to: get the respective stories out on the table without interruption or self-consciousness, build trust and confidence in the mediator, understand the ground rules of the process, create empathy on the part of each party for the other by encouraging the use of role-reversal where each steps into the shoes of the other, become comfortable with rules of "nice" negotiation, create reasonable expectations for settlement, decide whether the parties are ready to proceed to joint sessio, and if there is to be a joint session to prepare and circulate a proposed agenda from the viewpoint of each party for discussion. At the joint session, the mediator "follows the parties around," letting them direct themselves unless he or she feels they need assistance to stay on course.

In the narrative model, the assumption is that the parties have lived their lives through stories. Existentialist assumptions are avoided and an "externalizing conversation" is constructed. The parties are encouraged to pursue a curiosity concerning events that fall outside of the conflict or problem ("dominant") story that is viewed as a restraint on the process. Openings for the creation of an "alternative" story are sought so that the "relationships" story can be created for the future that will enable the parties to move on.

Contrary to what some might think, not every mediation falls into a specific method to be applied. Each situation is different. With respect to the homeowners' association dispute that I mediated, I decided that I needed to apply the humanistic method. So I arranged for two separate premeditation sessions of three hours each on consecutive nights where I went through the steps with the separate groups of homeowners.

I encouraged the use of conciliatory opening remarks by each side at the commencement of the joint session. To my delight, each side showed up on the third day and treated each other with respect from the beginning, demonstrating empathy throughout the activity that took place in the same room with an audience of other homeowners who were there to only observe. Six hours later, we had an agreement.

It was acknowledged by all the disputants that had it not been for the premeditation conferences and the resulting approach by both sides, there would have been no agreement. My activity as the mediator simply required that I "follow the parties around." I had done the hard work during the premeditation conferences. Preparation, rather than execution, was the key.