The Magic in Mediation

Needless to say, there is no actual magic to mediation; though I am often told after one party or the other takes an impossible position to “go do my magic.”  In my experience, mediation sometimes feels like magic because we find a solution that has previously alluded the parties and their counsel.  So, what is it that allows parties to find an acceptable settlement in mediation that could not be reached without it?

In some mediations, I think the neutral plays a small part in the outcome and in others a much more significant role.  An experienced mediator brings real value to the negotiation but ultimately the negotiation and its outcome belong to the parties.  

The Value of a Good Neutral

Over the past few years, I have had the opportunity to help in mediator training by observing role playing exercises by trainees.  In a recent course, I was assigned to observe a mediator who was not a lawyer as he navigated his way through a mock civil dispute.  Although his struggles with the law could be expected, what struck me was what he did right … naturally!  This was his first experience with mediation in any role but he displayed a natural instinct to listen (allowing the parties to be heard) and expressed genuine empathy.  Sometimes that may be all the parties need to move past the blockage.  Sometimes they need more.

The Value of Substantive Experience

A significant portion of my mediation practice involves business, commercial, and construction cases. Although I am never told why the parties selected me, I am certain that it involves the expectation that I will use my experience to challenge legal positions — this is not to say that either party hires me to challenge their own positions.

The North Carolina rules strongly encourage a facilitative approach to mediated settlement conferences.  Believing that neutrality (and the perception of neutrality) is an absolute requirement to be effective, challenging the parties can be a challenge when they have hired me in many cases to use my experience to challenge the other side.

I believe a good mediator can be effective outside their specific substantive backgrounds.  It can be both daunting and freeing to have no preconceived biases.

Understanding Conflict

In his insightful book, The Magic on Mediation, mediator/author Kenneth Cloke contends that conflict does not have a tangible existence “except in the ways it moves in our bodies, minds, emotions, and spirits; the ways it alters our attitudes and intentions; the ways it impacts the quality of our awareness, the depth of our relationships, the openness of our hearts, and the wisdom of our choices in responding to it. All of this can make conflicts appear confusing, intractable, and beyond our capacity to resolve, and the possibility of resolving it seem magical, mystical, and unimaginable.”

Cloke believes that “our experience of conflict is profoundly emotional” even though we describe the conflict in terms of facts, law, and logic. Cloke therefore contends that the magic in mediation happens as a result of small, “un-magical processes, techniques, methods, and interventions that, bit-by-bit, dismantle the invisible scaffolding, remove the nails, bolts, and screws that hold it together, and turn it, like a Rubik’s cube, until it returns to a harmonious, un-conflicted state.”

Certainly part of that process is a neutral hearing the parties with an empathetic non-judgmental ear. Cloke has a lot more to say about the “un-magical processes, techniques, methods, and interventions” that lead to “magic” and this will not be the last post in this blog describing his insights.  For me, I have experienced the magic in mediation and “would very much like to do so again.”