The Winter 2012 quarter of
ACResolution Magazine has a very nice series of articles addressing how
mediators' various professional backgrounds affect their conflict resolution work.
The issue offers a refreshingly
pragmatic view point, in my opinion. In the past few years, LinkedIn and
other professional discussion groups have reflected some serious "crisis
of faith" amongst alternative dispute resolution (ADR) practitioners, as
we weigh the relative merits of competing mediator styles, and struggle to
define ourselves within this very
broad and indefinite system of processes and techniques called
ADR.
To me, much of this chatter calls to
mind the admonition that we mind our own row, not that of our neighbors.
Not only do we not need to comment on and critique the different ways our
neighbors have of doing things, we also do not need to judge ourselves against
our neighbors. What I appreciated about this ACResolution issue is that
it neatly eschews the whole discourse of whose way is better, by simply
recognizing that we ADR professionals are all uniquely shaped by our
backgrounds and experiences.
For instance, as Duane
Ruth-Heffelbower, M.Div., J.D. writes, "lawyers view everything through a
rights lens while counselors look through a relationship lens." Id.,
"I'm a _____ mediator:" How Mediators' Profession of Origin
Affects their Practice. Thus, as we have all observed and many have
noted, lawyer mediators tend to fall closer "the evaluative end of the
mediation spectrum," while "mental health professionals tend toward
the facilitative end." Id. Ruth-Heffelbower raises the
interesting cause effect question, "which comes first, the person, the
background, the training, or the practice setting?"
The influence of background on
professional direction and view points is beautifully illustrated in the other
contributors' practices. Both the flavor of their respective styles and
their concrete process observations appear to reciprocally reflect and inform
their substantive practice. I think we all have much to learn from all these
different perspectives and focuses.
For example, Sue Bronson, is a
Licensed Social Worker who primarily works in family, elder, special education,
and workplace disputes. She states "I am an optimist. As a
mediator, I view the world as people struggling with burdens that others may
not see and hoping to find a bit of peace along the way. I generally see
the good intentions behind behaviors, even problematic ones..."
Bronson describes a "triangle
of needs in any conflict: substantive, procedural, and
relationship." Id., Perspective: From the Big
Picture to the Small Details. Substantive needs address the overt
conflict and perceived rights/injury therein. Bronson opines--correctly
in my view--that it is generally only the tip of the iceberg. Procedural
needs focus on "what's the decision process like?" This
includes questions about "how ... decision [are] made and priorities
set." Finally, "relationship issues invite us to explore how
each participant is seen and identified by self and others, and to sort out
their history together." Id. Bronson writes that
"[m]ental health professionals have training in all three levels of that
iceberg, with special emphasis on process and building
relationships." She describes her her practice as focusing on
non-judgmental but transformative process observations (I see that you do this
X and Y responds like that; I see that you do this Y and X responds like that);
deep empathy that validates each participant's perspective without
"de-legitimizing" the other's experience; and being present at all
times to both the participants' and her own thoughts and feelings.
Claire J. Salkowski came to conflict
resolution as a Quaker with a back ground in Montessori education. Well
before making the transformation into mediator, she had been drawn to the early
work of the Children's Creative Response to Conflict; had begun incorporating
those activities and Quaker beliefs about nurturing peace into her class room;
and then shifted gears as an educator to the Montessori system, with its focus
on the teacher as a "guide and facilitator of the child's own process of
discovery and learning." Id., Living a Double Life:
Career Confession of an Educator and ADR Specialist. To me, her
development as a mediator demonstrates a full "coming into being," in
which her upbringing, world view and personality have lead her inexorably to
certain fields and interests which have themselves led her further in her
life's expression, all to culminate naturally in a career in both education and
ADR.
James A. Rosentein, Esq. ,Nancy Neal
Yeend and Ann Bleed, Ph.D., P.E., in contrast came to mediation from commercial
and/or scientific backgrounds. While their backgrounds and experience
have clearly shaped their views, they still abide by traditional mediation
tenets of party self-determination and mediator impartiality. Rosenstein
came from a transactional law. background, in which he represented clients by
"using collaborative skills to help clients make deals that worked."
Id., From Transactional Lawyer to Commercial Mediator and Beyond
(emphasis in original). His typical clients as an attorney were real
estate development entrepreneurs whose projects required "resolving a
large number of problems--frequently interrelated--with multiple other
parties." During his career, in which decision making seemed to take
far more time than it should, he came to see that parties to these kinds of
deals need a "knowledgeable, skillful and impartial orchestra
conductor--in other words, a commercial mediator and negotiation
facilitator!" Nonetheless, he still recognizes that his ideas for
breaking impasses are best received when he is "able to find ways to
assist the parties in finding the solutions for themselves," rather than
his presenting them directly.
Yeend has scientific
training/education, and spent six years in business. She opines that
"specialists get more work than generalists," and that she chooses to
"stay in the 'cold-hearted' world of business" because that is where
her area of expertise and her predilections lie. Id., Life
Before Mediation. She argues that "[m]ediators who focus on
cases that relate to their previous profession have an easier time of
developing rapport and trust with the participants," while "[t]rust
is the cornerstone for building agreements." Her experiences also
suggest the parties and the process are are well served by mediator
specialization. Specialists "understand the participant's decision-making
criteria and do not ignore or discount it. Second, they 'speak' the
language of the mediation participants, or at a minimum have sufficient subject
matter understanding to construct appropriate questions."
Bleed, trained as a scientist and
engineer and having extensive experience in water law, is another mediation specialist.
However she describes a slightly different situation, in which she uses her
scientific knowledge to help structure and facilitate negotiations between
people with very different knowledge bases, conflict perspectives, and
communication styles: scientists, government and business
decision-makers. Id., Science and Facilitation. She
notes that scientists have little patience for negotiation on matters they feel
are governed by science, while business decision makers may lack firm
scientific grounding and place more reliance on a common-sense
view. Thus, as a facilitator she must "be able to determine
how much science must be understood to develop or embrace an agreement,"
and also to "explain the issue in a matter that would be understood"
by all.
The one seeming outlier in the
ACResolution issue is Justin R. Corbett, who describes himself as representing
an "up-and-coming cohort of freshly minted, pre-professionless
practitioners," who are "not drawing upon ... a decades-long career
of legal, therapeutic, social or any other work." Id., Rebel
with a Cause: The Making of a Community Mediator. I say seeming
outlier because, although I am an attorney and arbitrator as well as mediator,
many of the mediators I work with are similar to Corbett, meaning community
mediators not having a second license, degree or career, and they like Corbett
seem as much a produce of life experiences as any other mediator.
Which is not, however, to say this
way of coming to mediation doesn't impart unique values. Corbett points
out, as I have observed in similarly situated colleagues, that the lack of
"baggage" associated with another background can bring a refreshing
perspective free of unintentional biases. As he writes, in mediation his "focus
remain[s] on the content shared rather than potential extra-session
implications" that could be raised in a professional mediator's mind, and
his "qualifications, rather, lay in encouraging and facilitating extremely
difficult dialogues toward whatever end the parties chose."
Additionally, he is free "to draw skills and colloquial wisdoms from all
number of contributing fields, weighting them solely on personal interest and
professional applicability rather than some ascribed loyalty. Unbetrothed
to another's Standards," he is "free to engage the parties
monogamously through their own."
There is merit to Ruth-Heffelbower's
view that "clients prefer mediators with life experience" and
especially experience "in another discipline." However, the
extent and vibrancy of the "pre-professionless" mediator community
amply demonstrates that does not tell the whole story.
I think these stories illustrate a
number of lessons or reminders more poignantly than any lecture could:
- there are many ways to come to the mediation/ADR path;
- no one way is the right way of coming to or even doing ADR, provided we respect the basic tenets of party self determination, mediator impartiality, and confidentiality;
- the parties or clients themselves have unique needs that exist independently of our own views of the "right" background, training or perspective; and
- as with most life paths we are lead to ADR in complex ways--sometimes eerily inexorably, sometimes by winding course--but always as it was meant to be, it becomes clear in retrospect.
If you are interested ADR services,
please contact Pilar Vaile,
P.C. at (505) 247-0802 or info@pilarvailepc.com.
