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Almost Everything I Thought I Knew About Mediation Was Wrong!

Saturday, December, 22, 2012



My introduction to mediation occurred one winter day in the mid 50’s when I arrived home from elementary school and saw a television newscast covering the settlement of a labor dispute between one of the big three auto makers and the UAW. The little black and white screen showed several tall men with hats, overcoats, and huge cigars; on the steps of what appeared to me to be the Supreme Court building but was more probably, a mundane labor department facility.


The newscaster intoned in a deep, rich, baritone:


“…members of the Federal Mediation and Conciliation Service (FMCS) averted a strike today in a long standing labor dispute over wages and work rules that threatened thousands of jobs in the auto industry. Considering the domino effect on industry suppliers and the number of people working for them, the settlement could affect as many as 75,000 jobs!” The two sides hammered out an agreement with the help of the FMCS who met separately with each side over the past 48 hours. All parties came together at 9:00 this morning to announce a tentative settlement has been reached. United Auto Workers rank and file members are expected to ratify the agreement recommended by their bargaining committee. Terms of the agreement were not released pending next week’s ratification vote by union membership.


Wow, I saw mediators as savvy master architects of the back room deal and I was impressed! The seed was planted and becoming an all-powerful, federal mediator replaced Air Force pilot as the profession of choice in my eleven year old mind.


Skip forward to today… I am now a practicing mediator in Nashville, TN and although my specialty is copyright disputes, much of my experience has been in civil and family cases. Except for Willie Brown, ex-mayor of San Francisco, hats are now out of vogue; overcoats difficult to come by; cigarettes, let alone cigars, will get you tarred and feathered; and many if not most mediators I’ve met and trained under are women! The confidentiality and ethical considerations of our work preclude any informative media coverage, permitting only “…terms were not disclosed.” As for those smoke filled caucuses, many highly distinguished mediators now advocate that they too go the way of the dodo bird and perhaps for good reason.1 Sometimes motivated by political exigencies, sometimes by social engineering, and sometimes by what was believed to be common sense (remember the often misquoted statement “what’s good for GM is good for the country”), lots of arm-twisting coercion occurred in some of those smoke filled rooms.


So what are we left with if unlike my boyhood assumption, mediators are not tall, powerful, cigar chomping, great white father figures with an uncanny ability to move tough unions and the nation’s largest employers by mystical sleight of hand and tenacious political coercion?


The power of the mediation process. As an eleven year old, I knew nothing about the process and naively attached the “power” I was enamored with to the mediator. In fact, it is the mediation process facilitated by well-trained, experienced neutrals that can be as powerful as I imagined but in ways I never envisioned.


Mediators help parties communicate by acknowledging hurtful core feelings while promoting and facilitating dialogue that allows both parties to air nuances, extenuating circumstances, and the emotional impact of issues that would not see the light of day in a courtroom. By unlocking some of those intangible “stuck in the craw” personal hurts and resentments that often prevent parties from feeling empathy for the other side’s point of view and reaching compromise, mediators facilitate understanding.


Reframing and stripping away the pejorative verbal barbs that often attach like thorns to a rose stem, opens communication lines and allows for some of the sender’s message to actually penetrate the receiver’s receptor channels. Those channels, often clogged with debris from past, highly charged exchanges, may have narrowed resulting in severe restriction on the flow of information crucial to understanding the other party’s interests and needs. Just as ice breaking ships open frozen river channels to facilitate travel and commerce, once the channels are open, the parties often navigate toward their own solutions with minimal guidance and little further input from the mediator.


Wedging open the tough, macho, male persona and recognizing that “feelings” are as legitimate as “interests” and “needs” can be transformational.


Asking open-ended questions designed to unmask the interests and needs underlying “positions” can turn stalemated impasses into opportunities for innovative solutions.


The mediation process helps parties discover that creativity in problem solving is widely not narrowly distributed throughout our population. Contributions toward problem resolution can and do come from anyone including the most unexpected sources, if given the chance.


Skilled mediators facilitate the communication process so that all parties can truly be heard (often for the first time) and help create dialogue that leads to understanding and eventually resolution. While most of us are not architects, don’t practice sleight of hand, try hard not to engage in arm-twisting, and don’t smoke cigars, we do open clogged communication channels and assist disputants to fashion their own resolutions. Helping parties learn to be tough on the problem rather than the people is both the promise and the power of mediation.

1 See Gary Friedman and Jack Himmelstein, Challenging Conflict: Mediation through Understanding (Chicago: American Bar Association, 2008)


Charles (Chuck) Hill is a retired UC Berkeley administrator and the principal mediator of Charles A. Hill & Associates. He is a Rule 31 listed mediator practicing in Nashville, TN and a member of the board of directors of the Nashville Conflict Resolution Center.