Gary Friedman leads the 40-hour intensive mediation training that I will attend this week. He’s a proponent of what he and co-author Jack Himmelstein call the Understanding-Based Model of Mediation.* Four principles guide this approach.
The first and, by far, most important principle is to develop understanding. The mediator helps the parties understand their own and each other’s perspectives, concerns and priorities. With this better understanding, the parties can then work on solutions to the problem that brings them to mediation.
I’ve found that with better understanding, the parties can sometimes solve problems in addition to the immediate problem or lawsuit. While mediating cases for the Clackamas County Court, I encounter parties who have issues that go well beyond the money over which one party sued. Through better understanding, the parties craft agreements that go beyond the issues raised in the lawsuit.
Friedman describes the second principle as “going beneath the problem.” To me, this is a bit redundant with the first principle. Under this prong, Friedman discusses the subjective dimensions: assumptions, beliefs, feelings, anger, fear, etc. With this depth of understanding, the parties have a chance of working together, both today and in the future.
This is precisely what happened during my last mediation. One party was an insurance company that was trying to claw-back payments to a doctor. To the insurer, the issue was about following its rules. To the doctor, it was about integrity and the implication that he did something wrong or tried to sneak something past the company. He had performed the services for which he sought reimbursement. The doctor’s office-manager wife attended the mediation and expressed their anger at the implication of fraud and their fear that if they challenged the health insurer, then the company might dismiss them from the coveted preferred provider list. Once the doctor’s wife understood it was just “bean counting” for the insurer and that the insurer would not retaliate, she could move forward. Once the insurer understood how deeply offended the doctor felt, they were able to resolve the lawsuit plus develop additional agreements on how to avoid this problem in the future. This same-room negotiation was critical to developing understanding and options for agreement and a continuing relationship. The good result probably would not have occurred either with a trial or with separate-room, or caucused mediation. The insurer needed to see and feel the raw emotion it caused to a real person with a beating heart and functioning tear ducts.
Friedman’s third principle is party responsibility. He believes mediators should ask the parties to own their conflict: to assume responsibility, work through the issues, and reach agreement. This dovetails into his fourth principle, which is “working together.” Friedman wants the parties and their lawyers in the same room. He prefers no caucusing or shuttle diplomacy between rooms. The mediators job, he says “is to enable the parties to reach a mutually agreeable solution together.”
Among the dangers of separate-room mediations, argues Friedman & Himmelstein, is that the mediator becomes armed with more information than the parties. Then, the mediator is able to develop his or her own solution and urge or manipulate the disputants toward the mediator’s endpoint. Better to let the parties own and solve their problem(s) with your help in an open-transparent manner.
I agree that it is best if a mediator can convert disputants into partners working together to achieve success. However, if the premise is that same-room negotiation is THE ONLY way to go, then I start this 5-day training with some skepticism. Instead, I believe that a mediator should be skilled in all forms of mediation and, with the permission of the parties, determine which approach or combination of approaches might best help the parties. (I also begin this five-day workshop with pants on which I just spilled airplane coffee.)
Merrick Mediation Services
* Gary Friedman & Jack Himmelstein, Resolving Conflict Together: The Understanding-Based Model of Mediation, 4 J. of American Arbitration 225 (2005).