As humans we are often driven to try to understand what goes on around us. Often, we jump to conclusions in trying to reach that understanding. As mediators, we should resist the urge to make assumptions about what motivates parties. We need to understand what parties are saying, but when we try to go beyond that and diagnose their relationships, their motivations, or even the interactions in the room, we are treading on uncertain ground. When we do so, we may, ironically, be heading in a direction that is counter to the good we are doing in mediation. I have heard some mediators say that they like to figure out what is really “going on” between the parties. However, if we look beyond what parties are saying and toward what we believe is “going on” or to what motivates them, we begin to judge them: and that is the opposite of what we should do as mediators.
The value of mediation is that we are not following the usual course of discussion. We are finding a way to get past the assumptions and biases and confusions that surround normal human intercourse. We are finding a way to facilitate communication outside of the usual modes that people typically engage in. However, when we begin to make assumptions about “what is really going on” or diagnose behaviors or relationships, we are no longer finding a way to get past the usual problems of human intercourse: we are simply repeating them.
Understanding is, of course, important, but the understanding that is important is two-fold. It consists of each party understanding what he wants to convey, and of each party understanding what the other party is trying to convey. And it is, of course, the mediator’s job to help parties think more deeply about their perspectives, what they want, why they want it and what they want to convey. But all that is done respectfully and tentatively and with the consent and cooperation of the parties. As we ask them to consider their needs and desires beyond their positions, we do so to help them convey what they want to convey more clearly and productively and to help them find common ground and work toward a resolution. We do not do it to judge them.
During a mediation, parties may behave in ways that obstruct communication or may behave in ways that discourage collaborative work. But if the mediator points out these types of behaviors to the parties, the party who has engaged in the behavior may feel that he has been unfairly demonized. He may feel that the other party’s behavior goaded him into it; he may feel that the mediator is unaware of the meaning behind statements the other party may be making; or the party may feel that he has behaved badly once, but that in general it is the other party who behaves badly. Even when a party falls into line after having the behavior pointed out, the party may feel less willing to truly collaborate and the process may have been somewhat sabotaged.
When both parties are doing the same thing, it is easier to comment upon it. It is possible sometimes (although perhaps not risk free) to suggest to the parties that they speak in a collaborative way rather than an antagonistic way so that they can convince the other party of the value of their perspective. But if only one party is doing it, saying so may be at the risk of the mediator’s appearance of neutrality.
Diagnosing the problem in the relationship between the parties is something that we must not do as mediators. The parties did not come to mediation in order to request that their relationship be diagnosed. They came for help with a disagreement. If they do, however, ask the mediator to help them work on their ongoing relationship, that is certainly something the mediator can do. But the mediator can do so, not by diagnosing the problem, but by using mediation skills such as asking the parties to present their perspectives of the problem in the relationship and then facilitating communication and a focused discussion of the issues.
In sum, all that needs to be understood in mediation must come from the parties not from the mediator. The mediator goes astray when he tries to understand the nature of the parties’ behavior, the motivation of the parties or the nature of their relationship.