Whether for reasons of efficiency or perceived lack of probative value, a party’s emotional state, except insofar as it relates
to a specific general damages claim, is generally considered
be legally irrelevant and inadmissible in civil trial. Civil litigators
historically have advocated for their clients within the narrow
confines of remedies for pain and suffering or emotional distress.
Lawyers serving as mediators have to broaden their view of the
role of emotions in the mediation process. Emotions often fuel
negotiation tactics and objectives. Emotions may serve as barriers to communication and negotiation. Human nature is such that
emotions play a central role, independent of who is involved in the
dispute or the precise nature of the claims. Everyone is affected
by emotions, including top elected officials and diplomatic operatives, high-ranking executives and managers, highly educated
professionals of all kinds and everyday people. Understanding
the role of emotions in conflict and mediation is key to managing
the interaction between the parties in a productive way.
Mediators are trained to understand that emotions play a key
role in conflict and negotiation. The importance of being able to
‘sit with conflict’, i.e. to allow the parties to express themselves
emotionally without becoming overly agitated, is stressed in
mediation training. The mediation process welcomes the expression of emotional issues and invites parties to talk about what
is bothering them and how they feel. Several specific communication techniques are geared toward managing difficult
conversations, including active listening, reflecting emotions,
restating, role reversal, reframing and acknowledgment. A medi-ator's ability to calmly manage the parties' expression of intense
emotions enables the parties to understand the issues more
clearly and to find their own path through conflict.
People do not mirror themselves in running water
Rather, they mirror themselves in still water, Only
that which is still, Can still the stillness, In others.
THE RULES ARE THE RULES
Lawyers work in a complex web of procedural and substantive
rules. They rely upon statutes, regulations and other written rules.
They research and cite case law interpreting the common law and
written rules. The rules of professional responsibility dictate standards of conduct and practice. In short, lawyers are surrounded
by rules and they apply rules on a daily basis in their professional
practice. Rules of logic govern legal thinking. The Socratic method
of using questions to elicit information is the norm in law schools.
With everything that is implied, rules and rule-based behavior circumscribe every aspect of the practice of law.
Rules may bring a degree of certainty but they also restrict
possibilities. Rules may produce some defined standards but
they also tend to result in generalized outcomes and remedies
instead of individualized agreements. Rules, however arbitrary
and ill-defined, may engender feelings of comfort, order and pre-
dictability. Working within the rules and also outside traditional
boundaries of litigation, remedies and legalistic problemsolving
may engender feelings of a loss of structure and loss of direction.
Mediation is structured but flexible. Mediation has well-established rules of facilitation but it is fluid in the manner in which
they are applied. Mediation is a dynamic, interactive and multidimensional process, which requires constant adjustments and
sound judgment by the mediator. For example, the stages of
the mediation process provide a template for reference, but they
may be varied according to the needs of the parties. In some
cases, there will be premeditation communications between the
parties and the mediator, while in other cases, the mediation may
begin with a private caucus instead of a joint session. Mediators
may choose to meet with some, but not all, of the parties in a sub
caucus where it may be productive. Likewise, there is flexibility in
the way in which specialized communication techniques are used
by a mediator. Mediators must continually use their discretion,
skill and judgment during a mediation process that is unfolding,
changing direction and raising unexpected twists and turns.
Mediators are asked to bring to the table their training in the
mediation process as ‘process experts’. In addition, they bring
to the table their communication and negotiation skills and abilities. They also bring to mediation their subject matter knowledge
in particular fields and their general life experiences. Mediation
asks that mediators refrain from limiting themselves to strictly
traditional money agreements as settlements. They are challenged to be openminded about the range of possible solutions
that may exist for any given conflict. They are asked, in essence,
to be flexible, to allow the parties to help determine the direction
of the mediation process, and to allow litigants to find solutions
that, while lawful, are unique to their particular circumstances
and interests. As a practical matter, mediation takes place in the
‘shadow of the law’, which means that traditional rights, remedies
and norms provide the initial framework for some mediations.
However, this does not restrict the mediator from going outside
those traditional boundaries if the parties express an interest in
THE CONCEPT OF JUDGING
It has been said that judges are the hardest people to train as
mediators, lawyers are the next hardest and the rest of the population is the easiest. The law encourages judges and lawyers
to be judgmental about the facts, the law, and the credibility of
witnesses and parties. Often, the act of analyzing these factors
moves into the realm of sitting in judgment of others as people.
This type of focused analysis and global judgment is a difficult
habit to break.
A lawyer mediator faces the challenge of listening with an
open mind to parties who have already submitted compelling
mediation briefs. A lawyer mediator has to resist the temptation
to make early and unfounded judgments about the merits of a
claim or defense. Harder still is the task of suspending judgment