The mediator who succumbs to the temptation or accepts the to tell the parties what he or she thinks is a good, likely or reasonable outcome takes on a distinct role – that of Aristotle’s orator. This mediator abandons the notion that there are any systems to guide the parties and, perhaps more importantly, assumes that the parties “are persons who cannot take in at a glance a complicated argument, or follow a long chain of reasoning.” The mediator who makes predictions or suggests outcomes then has to set about figuring out how to persuade the parties that he or she is right.
The orator (mediator?) must consider how to arouse and use the passions of his audience as well as calculate how far to go in displaying his own emotions. He must consider the moral character of the audience to which he is appealing, and in this connection he must try to exhibit his own character in a favorable light. Finally, he must know the various types and sources of rhetorical argument – not only what sources of rhetorical argument are available for a particular purpose, but also how to employ each argument most persuasively. The Great Ideas, Mortimer J. Adler, MacMillan Publishing Co., New York, 1992, page 742
Those mediators who believe in making predictions or suggesting outcomes delude themselves when they argue that they do not think that their predictions are accurate, their suggestions are not worth acting on or that they do not intend to cause an outcome that they want to see. Otherwise, why would anyone ask them for predictions or suggestions and why would the mediator offer them? Even more pernicious, why would a party continue to use the same mediator again and again?
I think that the appeal of using neutral evaluators and mediators who morph into judges is misguided. For the past several decades, I have begun every mediation by alerting everyone, including lawyers, that at some point they might think that I was arguing with them and if they had that thought, they were probably right. And, no, I am not the devil’s advocate.
I do not think that all arguing is inherently a bad thing. It is bad when you are rude to people, when you talk over them or you select language designed to antagonize or demean them. My purpose for engaging them in conversation, asking questions and perhaps arguing with them is to be provocative – to alert them to my difficulty in making sense out of what they are saying, to flaws in their reasoning and their logic and to gaps in their “proof.” I do not need to be right or make someone else wrong. That is a critical and guiding principle in my understanding of mediation. I see my role a bit like the image in the ad of the elephant sitting on the chest of the character who is suffering from COPD – if my questions are making you uncomfortable or you are having a tough time constructing answers that survive careful, impartial testing – then consider changing your thinking (and get out from under the elephant.) Or not!
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This entry was posted in CONFLICT RESOLUTION, Divorce Mediation, evaluative mediation, Family Mediation, legal education, mediation, MEDIATION MATTERS, mediation training, NEGOTIATION, transformative mediation and tagged active listening, ADR, alternatives to litigation, conflict resolution, conflict resolution training, divorce, mediation, mediator training, IMPARTIAL MEDIATOR, neutrality on January 7, 2015.