The Invisible Mediator – Participant Self-Determination in Mediation

Guest Blog Post by Paul Rajkowski

Paul Rajkowski

Millions of words have been written in books, journals, internet comments and everywhere – all ideas and suggestions aimed at the mediators to improve their performance. There has been some good insight into improving the mediator’s skills and awareness but sometimes its goal appears to be about the mediator controlling the process. Mediation is not about the mediator. It is about getting the parties to communicate between themselves with the guidance of the mediator.

There is perhaps a way to develop a mediator with skills that truly encourage self-determination in the process.

What would a mediator have to know so that his performance might be considered “invisible,” whereby the parties, having come to a solution, are saying, “We did it ourselves.” Imagine parties yelling and screaming at each other at the start of the process (civil or family, makes no difference). The usual response is to immediately separate them to separate rooms while the mediator then shuttles back and forth, sometimes becoming no more than a message carrier. Result: end of communication between the parties.

We only use separate sessions because, one, it’s easy; two, we want to avoid emotional outbursts; three, it is what the lawyers want to do; and, four, we do not have the ability to do something else. Those millions of words used in mediator improvement are useless, aren’t they? In chorus, everyone is ready with, “We’re not therapists.” or “The mediator is still in charge.” Knowing the law is a good thing and being legally trained with additional mediation training must therefore be even better? Reasoning with the parties for them to understand how it would come out in court is the modus operandi. Current mediation practice pretty much guarantees lack of self-determination by the parties.

Yes, we can agree that some mediators do get the importance of self-determination but do not know the order and importance of questions necessary to achieve it.

What is needed is the mediator thinking about ways of having the parties talk to each other. That thinking starts with training. My contention is we learn about the psychological tendencies of the parties in conflict. We learn to ask questions — the Milton Method (open ended and vague) used in NLP (neurolinguistic programming). We learn the art of reframing and clarifying. We learn about social behavior, psychological tendencies. We learn to use words that encourage self-awareness and to identify unmet needs (Nonviolent Communication, Marshall Rosenberg). We learn about emotional intelligence and ethical intelligence (Goleman and Weinstein). We learn how to work with the parties for their benefit. It is letting them get clarity in their mind as to what kind of decision they need to make. We are not changing their value system. Instead, we are giving them the opportunity to overcome the hostility between them. We are helping them identify their needs and the other’s needs to get to an optimal agreement.

The mediator is not trying to fix it by throwing out “what-if’s”, “how about’s,” at the parties, but is asking or saying, “Tell me more; how does that happen; what’s important to you about that, “ and many other open-ended questions that can get the job done.

Unfortunately for some mediators it may sound boring but remember mediation is seldom about the sharing of ideas, mediator and party, as is currently practiced is usually in the separate session. My trained mediator hears a response and also readies a potential question for that response, e.g., party says, “That could work; other things could, too” It’s the seemingly throwaway words, “other things could, too.”

The mediator, generally would accept the start of an agreement and ask the other party what she thought. My highly trained mediator;-)) would ask, “What other things might work?”( a vague question versus “What exactly might work?”) And inside of that response would be another question, and on and on as other questions would come. The mediator is pulling ideas out of the party. Helping them clarify their thinking and never substituting his own ideas. As you may see, every question gets the party to think deeper and deeper about their intention and response, the result of which is the effort to self-determine the outcome and in the end coming to agreement, while saying “This is good. We have come to agreement and we did it ourselves.”

There are many more areas to know, such as the neuroscience field. The benefit of knowing how the brain functions gives the mediator an understanding of the chemical flow in the brain and what generates altruistic thoughts and alters emotional responses. But first one has to believe that emotion exists at the mediation table (98% emotion and 2% reason – citation) Doug Noll is my source for this. There are others: David Goleman, Bruce Weinstein, Jean Munroe, Deborah Bennett, Katherine Benzinger, and Marshall Rosenberg. These people cover ethics, emotions, logic, anger, and the mind. A mediator learns basic skills, the tools of the trade. My additional learning comes from using the best thinking of those mentioned above to motivate the parties to develop their own solution.

We still hear around the courthouse that a good agreement occurs when both parties agree but leave mad. My intention is to have them leave feeling as if they did something worthwhile and feeling good about it – but as if I were“invisible.”

 

Biography:

Paul Rajkowski was born and raised in Chicago, IL. He was educated in Catholic schools — grade, high school, and university. Between years one and two at university, Paul entered military service (USAF) and then returned to university, earning honors. Paul’s entry into the world of commerce began in graphic arts and he eventually owned a printing company. After several years a friend and customer suggested an opportunity in Tennessee where he entered the furniture industry. He came to mediation as the result of a divorce. He became a board member of the Community Mediation Center, a voluntary mediation group. Since then changing the paradigm of the process has been Paul’s goal, hoping to create real value based on complete self-determination by the parties.

Paul has three adult children by a previous marriage and four grandchildren. His addictions are golf and cooking.

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