From Mediating the Problem to Mediating the Moment


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From Mediating the Problem to Mediating the Moment

  1. 1. Shifting the Focus from Mediating the Problem to Mediating the Moment – Using Intuition as a Guide Greg Rooney and Margaret Ross Knowledge, Thinking and Being in a State of Reverie It is our ability to think that makes us a mediator, lawyer or social scientist not our acquired knowledge of the subject or field. Although knowledge acquisition is an important first step for the novice professional it does not make a practitioner. Professional practice involves engaging in a real encounter with other human beings in the here and now of the professional setting. How you think moment to moment is the driver of that engagement. The application of abstract knowledge is just a byproduct. The professional encounter has to be real and fresh and unique to each moment. In essence mediation, the law and the social sciences have to be continually created afresh by the practitioner and remain fresh during each moment of the professional encounter. The technical knowledge of a particular profession or field is static knowledge isolated from the here and now of the personal experience. Therefore one has to continually overcome that knowledge so as to be able to engage in the here and now of the moment. Thomas Ogden refers to this process within the context of psychoanalytic psychotherapy. He states: “... Analytic learning is biphasic. First, we learn analytic procedures, for example, how to conceive of, create and maintain the analytic frame; how to talk with the patient about what we sense to be the leading edge of the patient’s anxiety in transference; how to make analytic use of our reverie experience and other manifestations of the countertransference. Then, we try to learn how to overcome what we have learned in order to be free to create psychoanalysis anew with each patient. These ‘phases’ are in one sense sequential in that we have to know something before we can forget/overcome it. But, in another sense, particularly after we have completed formal analytic training, we are continually in the process of learning to overcome what we have learned.”. Part of the driving force behind the acquisition of knowledge is the desire to want to understand what is happening and why. This, at first glance, appears a natural consequence of study and inquiry into a profession or field. Bion (1981) warns against developing an attachment to the need to understand as it can inhibit the professional being attentive and totally present in the here and now of the moment. 1 Electronic copy available at:
  2. 2. He suggests that we need to experience something before we can develop a knowing. Experience, he says, precedes thought. Because the experience is permeated with uncertainty the need to understand what is going on and the urge to try and clear up that uncertainty only impedes the connection to the unfolding experience. He exhorts a quality of the mind that is openly receptive to the unknown (Bion 1981). Overcoming our knowledge is only the first step. We also have to overcome our thinking drawn from our own personal biases. These biases are a by-product of our rational mind’s attempt to make sense of our world based on our life experiences to date. They include our emotional responses drawn from our memories and desires (Bion 1981). The problem with our memories and desires is that they can block our receptivity to what is coming and what is at present not known These biases need to be isolated from our mental processes in order for the professional truly to ‘experience the experience’ of the encounter. Experiencing the Experience It is experiencing an experience that is at the heart of the mediation process. The structured mediation encounter is designed to offer a safe place for parties to experience something that hopefully will lead to a movement forward. It is sometimes assumed that there is an existing truth that can be sought out and discovered by the mediator. Bion (1970) asserts that there is no existing truth to be revealed but rather a moving toward a yet unrealised truth. There is a subtle but important difference between these two modes of thinking. This is because the experience comes first followed by the associated thought. If we reverse that order and direct our thoughts towards seeking out an answer before the experience then that mental approach will impede or reverse understanding as it unfolds in each moment. An example of allowing our thought to precede the experience is the formulation of a pre-mediation hypothesis. This is an example of a mental attitude based on a presumption that there is an existing answer or truth which the mediator only has to uncover. The problem with this mental attitude is that the moment we fix our focus on our hypothesis we automatically start a selection process accepting some points and discarding others. As Freud states this is precisely must not be done. He advocates maintaining and evenly suspended attention, not fixing on any one point. He stated that if we start following our expectations (hypothesis ) we are in danger of never finding out anything but what we already know (Freud). 2 Electronic copy available at:
  3. 3. The aim is to move the mental focus away from seeking ‘the truth’ or ‘the right answer’ and onto allowing the unknown to unfold. The latter is a far more challenging approach but it does open the door for a real connection and experience to arise between the mediator and the parties. It is suggested that we sit with the mystery and uncertainty of the forthcoming encounter. That we allow ourselves to be surprised by whatever eventuates. In that way we not only expand our own mental awareness but will also model for the parties openness of thinking. That openness then forms part of the safe place that the mediation session provides for people who are confused and in conflict. Zero Thinking So what mental state must the mediator possess and model for the parties so that everyone, including the mediator, can learn from the mediation experience? Wilfred Bion talks about a state of mind that is openly receptive to the unknown. He refers to it as a state of reverie which he has described as a form of mental void, a formless infinite and the perfect blank. It has also been called zero thinking (Bion 1970). It is a space in which the practitioner is unmoved by their own memories and desires and where there is an overall attentiveness to the present moment. Bion’s concept of attention is comparable to mindfulness, a major factor in Buddhist meditation. The common dominator between Bion’s view and the Buddhist view of mental development is that in both thought systems mental growth is synonymous with learning from experience (Pelled). The Professional Prism The thing that distinguishes a mediator, a lawyer and a social scientist is the prism through which they think. This prism is a construct of the substantive knowledge and practical training in the respective fields of mediation, the law and the social sciences. These prisms frame the here and now of the relevant professional encounter. However some lawyers and social scientists tend to view mediation through a legal or therapy prism. This is often a result of a fear of letting go of some of the comfort they have developed with their core profession. John Haynes sees this as a problem and advocates using only a mediation prism (Haynes). These professional prisms are overlaid with our own historical biases and the urge to prepare and try and predict what is likely to happen and why. It is by overcoming any attachment we have to these needs and biases that we can arrive in a mental state of professional reverie that allows the practitioner to be open to the new and the unexpected. It opens the door to fully experience the experience of the parties and of ourselves. It is only then we can make sense of events that have just 3
  4. 4. occurred. As Freud stated; “It must not be forgotten that the things one hears are for the most part things whose meaning is only recognised later on” (Freud). Expertise and knowledge There is also a considerable body of research drawn from the Expertise Literature that suggests that experts do not necessarily behave according to the conventions of their field or “by the book” (Wilson). It suggests that experts are not limited by the prevailing boundaries of current professional wisdom, knowledge and practice. An expert has been defined as someone who is “still learning “. Much of this research is drawn from observations of hostage negotiators, fire fighters and others who have to deal with fast moving and volatile situations. It requires flexibility and the ability to adapt and respond to the here and now of the moment. This includes adapting standard processes to meet the particular situation, sometimes pulling unconventional interventions in from left field. The ability to be able to accurately regurgitate knowledge is not sufficient of itself to establish expertise. Expert practice requires going beyond knowledge to embracing the art of operating in the ‘zero thinking zone’ or professional reverie. This reverie is grounded in the here and now of the present and within the concept of time and space that we all occupy. It connects the practising professional with the here and now of the moment. How we think affects how we behave as professionals and what influence we exert on the parties, the clients or our patients. It has significant implications with respect to issues such as ‘the use of self’ and intuition in relation to practice issues. It impacts on the integrity and presence of the mediator, the lawyer or the social scientists. It also challenges the illusionary concept that somehow we can be impartial and neutral. For mediators our thinking process defines how we practise. However one of the major inhibitors of the ability to think occurs when there is a limited amount of time and space. There is often pressure from the parties and their lawyers to find a quick solution and to condense the encounter by going straight to the bottom line via a shuttle negotiation. The philosophy behind the facilitative mediation process is to create sufficient time and space to allow the thinking process and professional reverie to develop firstly in the mediator and hopefully, by induction, with the parties. An important first step is to moving the focus away from the so-called problem and onto the parties and their disrupted relationship. 4
  5. 5. Creating the time and space to move the focus from the ‘Problem’ to the parties relationship The one thing that is common to all mediations is time. Time is therefore the thing that mediators provide. It is the currency that mediators trade in. How mediators structure that time defines the mediator and the mediation process being used. Mediators can allocate that time in either a series of separate sessions or one continuous session. They can allocate how much time they spend with the parties and their advisers and whether it is done individually or together. They can allocate time for pre-mediation meetings or not. However the parties generally do not see their relationship with the mediator in the context of time. They see it more in the context of the problem or impasse that they want the mediator to help resolve. This can create conflict between the mediator and the parties with respect to how the allocated time is utilised. If it is not quickly dealt with it can lead to a disconnect between the thinking process of the mediator and the thinking process of the parties. The illusionary nature of ‘the problem’ It is natural for the problem to become the parties’ main focus. It is why they came to mediation in the first place. However the problem with a total focus on ‘the problem’ is that it can dominate everyone’s thinking. This is compounded by the illusory nature of the problem. One party's version is not necessarily the others. This illusion is masked by the faux agreement that ‘the problem’ is just the difference between each party’s negotiation position. However ‘the problem’, as presented by the parties, is made up of a number of elements: a. The most visible is each party’s stated position with respect to the problem. A position is a strategic intervention. It is a negotiation strategy and is not necessarily a final position. There is an element of illusion and subterfuge about it. b. Then there is what is known as the parties’ bottom-line. This is generally not disclosed to the other party except if it is a pretend bottom-line used as a negotiating strategy (see a. above). However the real bottom line can shift during the mediation depending on the various influences and pressures brought about by the negotiation. Therefore even this real bottom line has an element of elasticity about it. c. Underpinning the stated position and the real bottom-line are each party's perceptions of the historical events that link their relationship. These perceptions are affected by natural and conditioned biases, mis or noncommunication, third-party involvement and unforeseen or unanticipated 5
  6. 6. intervening events. They form a cocktail of influences that impact on the problem. d. The role of the parties’ advisers also has to be factored in. These advisors include legal representatives and third parties (or the third aunt in the Singaporean culture)who have a vested interest in the outcome. They bring a range of abilities and biases that have an influence on the stated position and the bottom line. One factor that has a significant impact on the problem is often overlooked or dismissed. It is the relationship element that exists between the parties. It is normally presented by the parties as a fracture in their negotiation relationship. It stems from the fact that the parties have lost or abandoned their ability to resolve the problem directly between themselves. This applies even if they are only involved in a single arrangement. As a result of this fracture a form of relationship atrophy sets in. ‘Atrophy’ meaning a wasting away. Much like a muscle wasting away because of the lack of food, so does the relationship. This breakdown in the parties’ negotiation and personal relationship is often dismissed as irrelevant to the problem. Repairing the relationship is generally considered a lost cause and any attempt to do so is seen as an impediment to a swift resolution of the problem. The fractured relationship is often relegated to a second or third order issue. Because relationships are complex and personal, when they fracture they cause distress. It is therefore much easier and safer to direct focus away from the failed relationship and on to inanimate concepts such as the problem, as represented by the parties’ stated positions. It can appear less stressful to focus on the problem. The problem has the appearance of being static, definable and rational and, as such, controllable. It does not have all the unpleasantness associated with relationships. Mediating the Problem or the Relationship Parties generally believe that resolving the problem is what the mediation is all about, not about repairing a relationship. It is therefore easy for mediators to fall into line with this form of thinking. After all, the problem is what mediators are contracted to help resolve. Consequently, it can be easier for mediators to avoid having joint sessions with all the parties in the same room on the grounds that reconnecting the parties will only inflame the thing that they believed caused the breakdown in the first place. 6
  7. 7. For some mediators there is also a personal aversion to dealing with relationship issues. Many with a traditional legal background are not used to working with these issues and feel safer with unemotional facts and rationally stated issues. They come from a profession that historically has not treated emotions and relationships as relevant to their professional role. One way to avoid relationships impacting on the mediation sessions is to keep the parties apart. For retired judges and lawyers acting as mediators this can prove very attractive because it is consistent with how they have operated as judges and lawyer advocates. It can be even more attractive for those lawyers and retired judges who have not seen the need for formal mediation training. Mediation often becomes, for them, a form of private adjudication or a series of caucuses between the parties’ lawyers. However, the overt problem and the underlying disrupted relationship cannot really be separated from each other. They are both an integral part of the dispute and both need to be addressed. A holistic approach to resolving disputes needs to include both. They both impact on the path to a resolution and both need to be accommodated in planning a mediation. The Mediator as an Irritant. Relationships are at the heart of our human existence. We build up relationships with people to whom we are connected whether it be for social or for commercial reasons. These relationships develop unique communication and negotiating patterns which tend to disintegrate when conflicts and disputes remain unresolved. It can be more comfortable for everyone to leave the relationship issues alone and just concentrate on the problem. However this need for comfort is often a defence against facing the unpleasantness associated with disrupted relationships. Parties who are in conflict or dispute generally hold fast to their positions. One of the challenges for the mediator is to loosen those positions so as to pave the way for compromise or a new solution. One option is to focus on the problem as defined by the parties’ stated positions and try to elicit incremental concessions. This has been a standard way of negotiating and is readily accepted by parties and especially by traditional lawyers. It is often called shuttle mediation. The alternate method is to park the stated positions and use a process of reestablishing a constructive negotiating relationship between the parties before seeking concessions. This method is known as the facilitative mediation model. It is 7
  8. 8. designed to breathe life back into the parties’ relationship even if it is only a negotiating relationship that lasts for the duration of the session. At the heart of the facilitative mediation process is having the parties participate fully in the joint session. This creates the opportunity to press the restart button on their negotiation and communication relationship. This request to work jointly and collaboratively face-to-face with reluctant parties and their lawyers places the mediator in the role of an irritant. One of the definitions of the word irritate is to stimulate something into action, or excite or produce an uneasy sensation in a bodily organ. In the facilitative mediation context the mediator is trying to irritate or stimulate the communication and negotiating patterns back into life. It challenges the desire for comfort in both the parties and the mediator. This paradoxically creates a form of energy which can be used to divert the parties’ attention away from their fixed positions. When used appropriately it can distract the parties from the imagined problem sufficiently to allow them to relook at it from a fresh perspective. In Praise of the Joint Session The joint session provides the opportunity for a mediator to work simultaneously on the substantive issues and the underlying atrophied relationship. Private sessions can be part of the mix but are used as a specific intervention in support of the joint session. That is not to say parties should always be in joint session. It is appropriate in some cases that the parties should be kept apart. Each dispute has to be assessed on its own merits based on a thorough pre-mediation assessment. However, the joint session does provide the mediator with more options and challenges. It can open up unexpected opportunities for all participants. Mediating and negotiating in joint sessions require the mediator to develop an ability to be comfortable with the uncertainty that occurs when parties are asked to re-engage with each other. This requires the mediator to be totally present with the parties in the here and now of each moment. Shifting the focus from mediating the problem to mediating the moment Returning to the theme of time, when dealing with relationships time is not measured in hours but in moments. Each moment has its relevance and is connected to what has just come before it and what will follow. Yet each moment is new and stands on its own. There is uncertainty about what will happen. Mediators working in the moment have to accept that uncertainty and be comfortable with the unknown 8
  9. 9. and unpredictable. To this end they act as role models for the parties and their lawyers who also have to sit with this uncertainty. To do this effectively mediators need to be able to draw on their intuition and their intuitive responses to each moment. We use the word intuition in its traditional meaning, defined, in part, as; “the immediate apprehension of the mind without reason” (The Concise Oxford Dictionary). There are two parts this definition. The first is an immediate apprehension of the mind and the second is that it comes from outside us and outside our reasoning process. It is an immediate awareness that cannot be related back to our rational or emotional mind. A number of authors have given the word intuition a meaning opposite to its traditional meaning. Kahhneman uses a definition by Simon who states that intuition is nothing more than the recognition of stored memory. Kahhneman defines ‘systems one’ thinking as - experiencing a reaction to an event which produces a premonition. He refers to this as intuition. He also refers to intuitive knowledge which he states operates automatically and quickly with little or no effort and no sense of voluntary control (Kahhneman). Kahhneman and Simon are prepared to only adopt the first half of the traditional definition in that they accept that the intuitive awareness is an immediate apprehension of the mind. However they have distorted the traditional meaning by, in effect, deleting the words ‘without reason’ and replacing it ‘with reason’. The examples of stored memory, intuitive knowledge, behavioural reflexes and common beliefs are all awareness stemming from the rational mind. It is as if they cannot accept that we have access to awareness that emanate from outside of us. Lempereur (2003) in a paper titled “Identifying Some Obstacles from Intuition to a Successful Mediation Process” associated intuition with common beliefs and behavioural reflexes. However in his revised paper (2011) he has deleted the word intuition from the title and replaced it in the introduction with the word instinct. Instinct is defined in part as; “Innate propensity to certain seemingly rational acts performed without conscious intention; innate usu, fixed pattern of behaviour especially in response to certain simple stimuli.” (The Concise Oxford Dictionary) Instinct is a reaction to something triggered from within us. There is a rational basis supporting this reaction. Intuition is a product of something derived from somewhere outside of us which has no rational basis to support it. I suspect that Kahhneman and Simon are really referring to the word ‘instinct’ when they use the word ‘intuition’. 9
  10. 10. It is at this point that we can easily descend into a debate on definitions. The Concise Oxford Dictionary also includes ‘intuition’ within one of the other definitions of ‘instinct’. However this can be a trap. The rational mind likes to name and define complex concepts as a way avoiding the unpleasant uncertainties of going deeper into intangible areas. Defining something can create the illusion that the intangible is in fact tangible. It is as if defining words like ‘instinct’ and ‘intuition’ illuminates them. However this illumination can blind us to a deeper meaning. Bion refers to this in a translation of a letter from Sigmund Freud to Lou Andreas Salome; “ The analyst must cast a beam of intense darkness into the interior of the patients association so that some object that has hitherto been obscured in the light can now glow in that darkness” (Grotstein) We all have access to awareness from outside our emotional and rational minds except when that rational mind puts conscious and unconscious blockages in front of it. The art of connecting with our intuition is to detach from those blockages by letting go of any attachment to our memories, desires and the need to understand what is happening at any particular time (Bion 1981). These blockages include Kahhneman’s ‘systems one’ and ‘systems two’ thinking both of which are drawn from our own memories and desires. It requires us to practise and maintain an evenly suspended attention to all that is going on before us (Freud, Riskin). Intuition, using its traditional meaning, is an inner receptive sense organ which allows us access or a pathway to things that are still in the dark or which have not yet formed. We just have to detach from our rational mind by moving to a place beyond thinking. A place where, Grotstein argues, we can be curious, unsaturated and ready for the unexpected (Grotstein). Professional intuition is found in a wide range of disciplines and is one of the hallmarks of expert practice, especially in fields where professionals need to engage with fast-moving, uncertain and often messy situations. Rather than representing unreliable, vague feelings, intuition underpins and informs expertise, enabling experts to notice and respond to both patterns and anomalies occurring in their work Mediators using this approach need to have clear boundaries and possess a strong ethical awareness of their roles and responsibilities to the process and to the parties (Wilson). Working in the here and now of the moment, being present for and with the parties opens the door to a number of strategies drawn from many allied professions. These include the principle of deferring persuasion (Rapoport); strategic reciprocal and obligatory gift giving (Mauss); the employment of a number of hostage negotiation techniques; the underlying concept of the analytic third and the shared field of awareness. 10
  11. 11. Theoretical Underpinnings of the Facilitative Mediation Model It is important for mediators to understand the theoretical underpinnings behind the facilitative approach. These include theories drawn from other disciplines: a. Being in the Moment - Using Intuition as a Guide The concept of being in the moment has its origins in the field of psychoanalytic psychotherapy starting with Sigmund Freud in 1912. Freud wrote only five papers on technique. The following is his suggestion on the preferred state of mind of physicians who wish to practise analysis: “It consists simply in not directing one’s notice to anything in particular and in maintaining the same ‘evenly-suspended attention’ (as I have called it) in the face of all that one hears. In this way we spare ourselves a strain on our attention which could not in any case be kept up for several hours daily, and we avoid a danger which is inseparable from the exercise of deliberate attention. For as soon as one deliberately concentrates his attention to a certain degree, he begins to select from the material before him; one point will be fixed in his mind with particular clearness and some other will be correspondingly discarded, and in the making of this selection he will be following his expectations or inclinations. This however, is precisely what must not be done. In making the selection; if he follows his expectations he is in danger of never finding anything but what he already knows; and if he follows his inclinations he will certainly falsify what he may perceive. It must not be forgotten that the things one hears are for the most part things whose meaning is only recognised later on” (Freud, 1912, p. 432). Freud suggested we only learn or evolve through experiencing an experience. This applies for the therapist as well as for the parties. He suggests that it is only after experiencing something that we can recognise its meaning. Applying this to the mediation context, if the mediator can be totally present in the moment with the parties with their mind evenly suspended and observe the parties without judging or rationalising then he or she can draw on that experience to allow an intuitive awareness to crystallise. This intuitive response arises out of the here and now of the moment and can assist the mediator in deciding what to do next in the session. Wilfred Bion (1981) expanded on Freud's thesis. He suggested that for analysts to be present fully in the here and now of the session they have to detach from their memories, desires and the need to understand what is happening at a particular point in time. He stated that the problem is not having memories, desires and a need to understand. We all have them. The problem is our attachment to them in the session. These attachments get in the way of being in the moment. 11
  12. 12. They fill a space in our mind that blocks out something new coming in. Both Freud and Bion encouraged analysts to be in a state of mind that allowed themselves to be surprised (Havens, Rooney 2008, 2011). A number of modern writers have expressed these concepts using different terms. The concept of ‘mindfulness’ also refers to paying attention to the moment: “It is a way of paying attention moment to moment with equanimity and without attachment to whatever passes through the conventional senses and the mind. A person in this state of present moment, non-judgemental awareness can yet enjoy a degree of freedom from them which can lead to a better performance in negotiation or mediation or any activity” (Riskin). Another term used is ‘suspension’: “In practice, suspension requires patience and a willingness not to impose preestablished frameworks or mental models on what we are seeing. If we simply observe without forming conclusions as to what our observations mean and allow ourselves to sit with all the seemingly unrelated bits and pieces of information we see, fresh ways to understand a situation can eventually emerge”. (Senge, Scharmer, Jaworski and Flowers) Thomas Moore emphasises the importance of moments. He notes that there is a tendency for people to try to resolve tension as soon as possible. He suggests that this is such a natural reaction that it may seem strange to suggest that parties willingly remain in their discomfort. He states that we are conditioned to want quick solutions. He points out that there are benefits from being patient with contradictions and paradoxes. One benefit is the possibility of finding more profound and lasting solutions to life’s problems. He states: “A rush to find solutions can lead to something being quickly put together. If we can tolerate moments of chaos and confusion then something truly new can come to light. There may be new tensions and unfamiliar ambiguities to deal with, but having won a fresh vantage point through the courageous endurance of tension, we may be better equipped to understand the process, realising that illusions and follies have their own roles to play in the mysterious alchemy of the soulful life”. (Moore). There has also been some recent research confirming that being in the moment elongates time perception. Writing in the Journal of Psychological Science, scientists from Stanford University in California led by Melanie Rudd and Jennifer Aaker together with Kathleen Vohs from the University of Minnesota concluded, on the basis of research that being in the present moment elongates time, that experiencing awe relative to other states cause people to perceive that they have more time available and that it can lessen impatience. This was found 12
  13. 13. to lead to a stronger desire to spend time helping others and partake in experiential goods over material ones. They noted that awe can be elicited by a walk down memory lane, a brief story or even a sixty second commercial. Daniel B Wile refers to solving the moment rather than the problem. He maintains that what distinguishes Collaborative Couple Therapy from other approaches to couple therapy is that it focuses on the moment rather than the problem. He states that collaborative couple therapy is based on the concept that when issues arise in the relationship between the parties each one suffers loss of voice. Also as a couple they lose their connection. Further he states that the therapist also has a problem in that they, the therapist, lose their empathy with the parties. Wile maintains that the therapeutic task is to solve the moment rather than solve the problem. He states that by focusing on the moment it allows parties individually and collectively and the therapist to recover from these losses. He states: “Solving the moment is a collaborative couple therapy way to solve the couple's problem, since it creates the collaborative spirit that enables couples to arrive at whatever practical solutions might be possible” (Wile). The Third Wile asserts that the therapist's empathy is the connecting bridge between a therapist and the parties. However there is an alternative view. Thomas H. Ogden suggests that in addition to the therapist and the individual party or parties there is another entity in the room which is made up of a combination of all three. It has been referred to as an intermediate third area of experience which is contributed to by the analyst and the parties. Ogden maintains that the intermediate area of experience belongs to both and to neither. In psychoanalytic terms this entity has been called ‘the analytic third’. It has also been called ‘intersubjectivity’ (Ogden). It can also be understood as the space between the parties or the field which exists whenever the parties and therapist are present together. The third or the field is jointly created in the conscious and unconscious relationship between the people. It mostly dissipates when they cease being together in that setting. It fully exists in the shared moment. In the context of mediation the ‘analytic third’ or in this case the ‘mediatory third’ (or it might have to be the mediatory fourth or fifth depending on the number of parties in the mediation) is the creation of the interaction of shared time, space and interrelationship experienced by the mediator and the parties. Although each party still exists within his or her own subjectivity, the parties, by 13
  14. 14. being in a mediation relationship with other people, also exists in the intersubjective experience of that relationship. All parties experience “the mediatory third” in the context of their own personality systems, personal history and psychological makeup. While the ‘mediatory third’ is jointly created by all three parties it is not identical for each participant. However because it is a shared experience all parties including the mediator, add to or subtract from it with their conscious and unconscious thoughts and actions. For the mediator who is totally in the moment and detaches from their own memory and desire the intuitive thought coming into their mind from this shared relationship experience (intersubjectivity) can be highly pertinent. The mediator can allow the co-created intersubjective area of experience to inform him or her as to what is coming up in the mediation. This connection by the mediator to the parties via the ‘third’ emphasises the importance of Bion’s dictum of letting go of any overt attachment to our own memories, desires and the need to understand and Freud's maintenance of an evenly suspended attention. In practical terms it means that the mediator's own negative thoughts about the parties or the prospects of success of the mediation directly affects ‘the third’ at both a conscious and unconscious level. Likewise positive thoughts about the parties and the success of the mediation also feed into the collective ‘third’. The suggestion is that there is energy in the room that is something more than the sum of the individual parts. The mediator is as much a part of that energy as are the parties. The mediator’s personality system, personal history and psychological makeup play an equal part in the mediation process as do those of the parties. This challenges some of the traditional mediation concepts of impartiality and neutrality. The presence of this ‘third ‘is often expressed in religious and spiritual connotations with terms such as the Christian concept of ‘The Holy Spirit’, the Dao 道, the ten thousand things and becoming one with the Tao. An example of the presence of ‘the third’ can be found in the comments of M. J. Slattery Q.C. when noting the connection between participation and human reactions in his review of his first experience acting as a lawyer for a party in mediation: “The fatal step in mediation is to say yes to the idea in the first place. Mere participation in the process works insidiously over time to suspend, then overcome, much of the detachment of lawyers and the cynicism of their clients. 14
  15. 15. Once hours, days or even months have been spent mediating in a structured environment, human reactions attempt to give all this activity some purpose. The motivation to settle then appears”. (M. J. Slattery Q.C). b. Deferring persuasion and problem-solving Anatol Rapoport in his book Games, Fights and Debates examines how to increase the likelihood that people will choose cooperation over self-interest in a debate or conflict. His answer is to reduce the threats so that people can feel safe to cooperate and give up their self interests. He suggests that in order to make conflicts safe parties firstly need to postpone persuasion and problem-solving until each person can state the other person’s position (interests and concerns in mediation speak) to that person’s satisfaction. The aim is to create attunement and increase cooperation. Gottman refers to Rapoport’s principles and suggests that the ultimate goal of attunement is to reduce the threat for participants and avoid what he calls flooding so that nondefensiveness, understanding and empathy can occur. Gottman defines flooding as a reaction where a person under pressure becomes overwhelmed by negative affect. It usually consists of a mixture of emotions such as grief and anger. When a person becomes flooded they would rather be anywhere on the planet than where they are. Gottman maintains that the more a person becomes flooded the more their ability to take on new information decreases. He suggests that flooding erodes the level of trust and parties start to act out of their own self-interest. A flooded person loses the ability to listen to the other. When flooding is triggered it causes the heartbeat to rise above 95 bpm and takes at least 20 minutes to recover. He also found are that men are quicker to flood and de-flood than women. Gottman suggests there are three parts to flooding: “The first part is the shock of feeling attacked, blamed and abandoned. The second part is awareness that we can't calm down. The third part is emotional shutdown. When we are flooded we become like a city under siege. Conflict then starts becoming an absorbing state. …… It suggests that when people are flooded they cannot listen even though they might wish to. …. and can't be very creative”(Gottman p 209) Gottman states that attunement during conflict needs to be reciprocal. Therefore he suggests that each party takes turns as speaker and listener. The listener is required to attune, take notes and be able to repeat the speaker’s position (interests and concerns) to the speaker’s satisfaction. This requires not only summarising what the speaker has said but also validating the speaker’s feelings 15
  16. 16. and needs. He suggests that making this work requires postponing persuasion and problem-solving so that defensiveness is reduced (Gottman). This approach of creating reciprocal attunement mirrors the standard facilitative mediation model in which the mediator takes a statement from each party and reads it back in a way that not only summarises what each has said but acknowledges and validates each parties feelings and needs. Gottman notes that in practice it is often difficult for parties to stop expressing negative affect and blame. The facilitative model of mediation attempts to counter this problem by the mediator capturing each party's words and reading them back in a way that converts the complaint into a positive need. The object is to create what Gottman calls attunement between the parties. c. The Obligation to Repay Gifts The anthropologist Marcel Mauss (Mauss) has investigated the power of gift giving in a number of societies. He suggests that the power inherent in gift giving is universal. It invokes the principle of reciprocity (Coggiola) whereby the gift received has to be repaid. He suggests that in theory gifts are voluntary disinterested and spontaneous but in fact they are given and repaid under obligation and self-interest. He asks what force is there in the thing given which compels the recipient to make a return? Even though the gift appears to be given generously it is in fact a form of pretence and social deception. In Maori culture the spiritual power of the giver remains embedded in the gift. When the gift is received the person receiving it acquires this power. Through it the giver has a hold over the recipient. The only way to expunge that power and to neutralise it is by reciprocating. This is the motivating force behind the obligatory circulation of wealth, tribute and gifts in Samoa and New Zealand (Mauss). The pressure to reciprocate when receiving a gift has important implications for mediators and the parties. Often an impasse can be broken by a simple gift given by one party to the other. It can be as small as an acknowledgement or the willingness to make a concession even if it is only very small. It invokes the principle of reciprocity putting pressure on the other party to respond. This can mark the beginning of a movement towards resolution. One of the powers and advantages of working in the moment rather than focusing solely on the problem is that it allows more opportunity for gifts to be exchanged. A gift, no matter how small, can re-invigorate a relationship that has atrophied. Gifts are often used to great effect in hostage negotiations as a technique to pressure the hostage taker into reciprocating. 16
  17. 17. d. Focusing on interests rather than positions Many of the theoretical underpinnings of negotiation theory apply equally to mediation. Parties in conflict generally present the problem to the mediator as a conglomeration of their competing positions. Fisher, Ury and Patton in ‘Getting to Yes’, their seminal book on negotiation, suggest that underneath these positions are a series of underlying interests. They contend that the basic problem in a negotiation lies not in conflicting positions, but in the conflict between each party’s needs, desires, concerns and fears. They suggest that interests motivate people; they are the silent movers behind the hub of positions. That behind opposing positions lay shared and compatible interests, as well as conflicting ones. By the time the parties reach mediation their positions have often become fixed and immutable. A mediator can create some dissonance in the parties’ thinking by focusing on each moment of the relationship building phase of the facilitative model. The act of postponing persuasion during this exploration period allows time and space for the parties to ponder the why question. Why do they want what they want? Why do they want that fixed position? Positions are what people want. Interests are why they want that. e. Separating the people from the problem Fisher Ury and Patton also suggest that the basic fact about negotiations is that you are dealing with human beings. They have emotions, deeply held values and different backgrounds and viewpoints. They are unpredictable. These emotions are generally expressed in the relationship plane rather than in the defined problem plane. Failing to deal with others sensitively as human beings prone to human reactions can be disastrous for a negotiation. A major consequence is that the parties’ relationships tend to become entangled with their discussions about issues of substance. It is therefore important that mediators address both the relationship issues and the substantive issues. Fisher, Ury and Patton suggest separating the people from the problem through maintaining a good working negotiating relationship as they deal with the substantive issue (Fisher Ury and Patton). This again highlights the importance of deferring persuasion until a constructive negotiating relationship has been established. Conclusion 17
  18. 18. Mediators make choices on how they allocate their time with the parties. One choice is to focus totally on the parties’ problem by chipping away at their positions until sufficient concessions are granted by each side to achieve resolution. Engaging in hard-nosed adversarial negotiations (positional bargaining) can have the appearance of negotiating from a basis of power and strength. Yet, paradoxically, it is a soft option compared to the challenges and dynamics of working with the parties on their interests and concerns in the here and now of the moment. The choice of working with the parties in the moment brings with it personal challenges for the experienced mediator but at the same time, potentially, great rewards. It does require a level of expertise. This expertise relates more to the mediator's ability to think in a way which is detach from his or her own issues and be totally present with the parties. It involves becoming comfortable with and accepting the uncertainty of the moment. It is not something that is to be practiced just prior to the professional encounter. It is something to be practiced throughout a lifetime (Symington). Citation : Rooney, Greg and Ross, Margaret Eleanor, 2140220 Available at SSRN: Margaret Ross and Greg Rooney have practised for more than 20 years as mediators in Australia. They are both lawyers and have taught and trained mediators for a number of public and private institutions over the last three decades. They, together with Barbara Wilson from the UK, conduct annual residential mediation workshops in Tuscany, Italy. Greg and Margaret would like to thank Murray Heath and Barbara Wilson for their assistance in preparing this paper. REFERENCES Bion, W.R. (1970) Attention and interpretation. London: Tavistock. In Seven Servants (1977) New York: Jason Aronson 1970 Bion, W. R.(1981) “Notes on Memory and Desire” (1967). In R. Langs (ed.) Classics in Psycho-Analytic Technique. New York: Jason Aronson, 1981 Coggiola, D. Cialdini’s Six in Mediation ADR Bulletin Volume 10, Number 7 Fisher, R. Ury, W.L. Patton, B. Getting to Yes: Negotiating Agreement Without Giving In 1981 Hutchinson 18
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