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Within the legal and "dispute resolution" communities, there's been an ongoing battle over which process is "better," which approach within any given process is "better," and what background and training is "better" for any given process and approach.
I've placed certain words and phrases in quotes for reasons which will soon become apparent.
As defined by the Oxford Dictionary, "better" means "More desirable, satisfactory, or effective."
In evaluating whether one product or service is "better" than another, isn't it essential to assess what the potential user of the product or service hopes to accomplish? Otherwise, on what basis are we making such a comparison and how are our personal biases, beliefs, assumptions, expectations and values impacting our assessment?
According to social science researcher Brené Brown:
"[W]e blame because we want to hold people accountable. However, blame serves no value, and is NOT the same as accountability. We live in a blame culture — we want to know whose fault it is and how they’re going to pay. Blame is defined as the simple discharging of pain and discomfort. We do a lot of screaming and finger-pointing, but we rarely hold people accountable. How could we? We’re so exhausted from ranting and raving that we don’t have the energy to develop meaningful consequences and enforce them. Accountability is about understanding how vulnerable we feel, expressing that and asking for what we need. Instead, we tend to make people guess what we need and then blame them for not delivering. The people who score the highest on holding people accountable score lowest on blame. Wouldn’t it be better if we could be kinder, but firmer? How would our lives be different if there were less anger and more accountability? What would our work and home lives look like if we blamed less but had more respect for boundaries?”
Unless the potential user of any given product or service understands how vulnerable they feel, expresses that and asks for what they need, how can any of us provide accurate advice? After all, life is not spandex and therefore there are typically no one-size-fits-all solutions.
As an example, just yesterday, I completed a mediation for a childless non-married former couple whose financial issues with each other was legally viewed as a civil or business dispute. Before commencing mediation, they were both in agreement that they were hoping to accomplish the following: (1) resolve their situation amicably (without hostility), (2) honor and respect their past; and (3) remain friends without animosity. They also agreed that they would each meet with me separately for two hours, both to prepare for the joint mediation sessions, and to express how vulnerable they feel and their needs in what they viewed as a safe environment.
Along those lines, the first communication I received from either of them was an email which provided in part as follows: "I hope we can remain friends and through mediation, accomplish this desire. This is an emotional situation and I do not mean to imply it is an easy one."
It bears mentioning that they had interviewed three mediators prior to meeting with me, all three of whom were retired judges.
The first mediator with whom they met gave his legal assessment of the case during the consultation, which upset the party who would stand to lose under such an evaluation. For obvious reasons, that party didn't care for the first mediator.
Irrespective, "a great deal has been written about the fact that when spouses feel compelled to win their arguments with each other, they end up losing their relationship. It would behoove us to keep this in mind because the need to 'win' arguments is not conducive to happy marriages, positive family dynamics, or interpersonal relationships of any type."
As such, it should be of no surprise that "the research clearly shows that evaluative “mediation” works best in situations in which there will be no ongoing relationship of some sort."
In fact, the following excerpt is from an article published in Harvard Law School's Program on Negotiation titled Mediation: Negotiating a More Satisfactory Divorce: Mediation offers a more peaceful alternative to traditional divorce negotiations and has been found to achieve higher settlement rates than litigation.
"Mediation would seem to offer a more peaceful alternative to the traditional adversarial approach to divorce negotiations. And, indeed, mediated divorces, now widespread, have been found to achieve higher settlement rates than litigation....
[A recent study found that] as compared with those engaged in litigation, participants who engaged in mediation reported that they reached higher quality agreements, as measured by how tailored, fair, comprehensive, and clear the agreement was....
In addition to looking at whether the divorces were mediated or litigated, the researchers examined the negotiating style of the mediators and lawyers involved. In a facilitative mediation, the mediator focuses on helping parties carry out a smooth, open conversation; in an evaluative mediation, the mediator may also evaluate parties’ positions and even propose a settlement. Many divorce attorneys have begun to adopt a more facilitative approach—for example, by trying to de-escalate conflict and improve the quality of the relationship between the divorcing spouses.
Study participants whose mediator or lawyer took a facilitative approach to the negotiation, as measured by their tendency to engage in problem solving behaviors and help their clients focus on interests, generally reported high-quality outcomes.
Overall, the results suggest that couples would be wise to be aided by professionals who believe that reducing conflict and encouraging an open dialogue are more likely to promote a satisfactory divorce than a straightforward competitive approach would."
Meanwhile, the first mediator with whom the clients met quite obviously approaches mediation in an evaluative manner based upon the their perceived winners and losers from a legal analysis, as if it were being handled in a court of law.
However, would such an approach have been in accordance with their desire to remain friends upon the completion of the mediation?
The second mediator felt that they seemed amicable and therefore suggested that they work on improving their relationship, rather than dissolving it. Since at least one of the parties involved had no interest in remaining a couple at that point, they were turned off by the mediator's suggestion.
Remember that the first communication I received from either of the parties involved advised me in part as follows: "This is an emotional situation and I do not mean to imply it is an easy one."
This mediator's belief was consistent with the belief that many family law attorneys hold, which is that "if divorcing couples are able to have a successful divorce, why are they even divorcing?"
While they both liked the third mediator, that mediator actually heard and understood their needs, the level of emotions involved, and concluded that he wasn't ideally suited for the role.
In fact, he reached out to me by email about the possibility of my mediating the case as follows:
"Hi Mark, I have been asked to mediate a dissolution of a non-married, non-domestic partner relationship.... I thought of you and collaborative divorce as they really need someone to talk them through their separation which they say is amicable but I think is acrimonious based upon our first meeting. While they want me to do it, I think someone like you may be more experienced and better equipped."
Included in the first communication I received from one of the parties in this matter was the following: "We are splitting up and were referred to **** **** for mediation. I like **** a lot but he said he believes you have more experience in the type of situation we have."
After our initial consultation, the other party emailed me the following: "I feel confident in your abilities in helping us arrange our affairs with respect and love."
Following our first mediation session and before the second, that same party sent the following email: "I look forward to seeing you tomorrow and still hope for a mutual happy resolution to move on with."
After concluding their final mediation session, they both expressed how safe they felt in the mediation setting with me, how much their communication with each other had improved, and how relieved they were that they accomplished their mission in handling this through the mediation process.
I asked if there was anything I could have improved upon for future reference and they couldn't think of a single thing.
As Brown says, "Accountability is about understanding how vulnerable we feel, expressing that and asking for what we need. Instead, we tend to make people guess what we need and then blame them for not delivering."
Had the clients retained either of the first two mediators, what is the likelihood that either of them would have delivered that which the clients wanted, considering their clearly stated needs and desires?
How can you assess the appropriateness or suitability of a particular product or service, if the client's needs are not well understood?
If we want to provide clients with the "best" possible product or service or refer them for such products or services, don't we need to have a very clear understanding of their needs? To the extent that individuals are not forthcoming with such needs, shouldn't we do our best to help elicit them, so that we will not be blamed for failing to deliver?
For frame of reference, I know, trust, like, and respect two of the three retired judges with whom my mediation clients met prior to their retaining me. They are both highly respected, and for good reason. I can't comment on one of them, only because I have no information with which to formulate an opinion.
Depending upon the particular needs of the parties involved, there is no question in my mind that either of those retired judge mediators would be extremely well-equipped to deliver services for which such clients would be tremendously pleased.
However, it depends upon the particular needs of the parties involved and whether the mediator has the skill set needed to properly address those needs.
To what extent did the first two mediators' personal biases, beliefs, assumptions, expectations and values come across during their consultations? Had the clients not picked up on such things while consulting with those mediators and had they retained either of them, how might that have played out? What about if the clients had never even had the opportunity to interview the possible mediators to learn such things, because their attorneys had selected the mediator for them, which is what typically happens when lawyers are involved?
When clients actually interview the mediator, if they listen carefully enough, they are able to pick up on unchecked biases, which may turn them off to that particular mediator. It might also cause them to realize that the mediator lacks the self-awareness to keep their biases in check, to the extent possible.
Interestingly enough, "empathy happens to be an amazing form of bias reduction and helps to keep your biases in check."
"Empathy is one of the most important skills to develop and practice. It allows us to understand the world as others see it, is a key component of compassion, and is incompatible with shame and judgment. Absent empathy, critical thinking is impaired because not all perspectives are considered, which precludes a deeper understanding of problems."
Fortunately for the clients in this particular situation, the mediator who referred them to me had the empathy required to fully understand the clients' needs and the self-awareness to know his limitations and my strengths. Unfortunately, that's by no means true most of the time and I don't believe the public has the information to make such informed decisions.
However, you can only give what you have and teach what you know. It is unrealistic to expect someone to give that which they don't have or teach that which they don't know. "Having unrealistic expectations is a major source of unhappiness and it's very challenging to be grateful for disappointments."
Outcomes are typically determined by the way in which the 'game' is designed. Therefore, shouldn't things be designed to achieve a more desired outcome?
It seems to me that the third potential mediator helped these particular mediation clients design their "game" so as to achieve their desired outcome, which they did.
Mediators love to talk about the importance of clients' self-determination in the mediation process.
How about self-determination with regard to the selection of the particular process and approach itself?
Nevertheless, self-determination can't occur with regard to such a selection process, if the clients don't have the information from which to make informed decisions.
What self-determination isn't, in my opinion, is clients making uninformed decisions because the mediators believe that providing them with such information somehow interferes with self-determination.
From my perspective, legally competent people making informed decisions can agree to anything they want, as long as it is legal and not otherwise in violation of public policy.
Where many of us seem to differ is what is required, if anything, for such informed consent.
As with everything, what's "better" or "best" is a matter of perspective and the perspective that matters most is that held by the individuals in need of any given product or service.
