Approaching Mediation as Constructive Engagement





This year's newsletter is a series of "Life Lessons", in tribute to my late mother. They are lessons that have served me well as I apply them to mediation.  

I read an article in the New York Times by Frank Bruni called "The Dangerous Safety of College".  There, he criticized recent events at Middlebury College when the [predominantly liberal] students protested a planned talk by ultra-conservative, Charles Murray on campus.  Instead of rock throwing and other loud and potentially dangerous obfuscation, Bruni advocated for a type of "constructive engagement" on college campuses in America.  Indeed, he suggested that it is imperative that we teach our children how to engage in dialogue, rather than hope to prevent speeches which adopt different beliefs and values than their own.

My mother knew this instinctively.  She was incredibly open to different opinions:  in politics, religion, fashion or family.  She really taught each of us to give "the other" the benefit of the doubt.  She urged us to suspend any judgment until we heard the other person out completely.  She knew that unless we approached conflict with curiosity, our world would be narrow and our views would become stale or misunderstood over time.

In mediation, all too often the parties approach the other side with a jaded, skeptical or even a hostile pre-conceived view.  Their opinions are biased by their own perspective and their lens on the world is colored by their experience and expectation of "the other".  This can serve to limit the potential of settlement at it's narrowest, and the possibility of true growth and understanding at it's broadest. Although it may be effective if you are fortunate enough to draw a jury who holds the same world views as your client, it is generally a bad strategy in mediation.

My mother knew that it would be a shame to refuse or fail to consider other people's view points when formulating her own.  She knew that growth would only come from giving the other side of any conflict the benefit of the doubt.  Parenthetically, most psychologists say that the key to resolving inevitable conflict that arises in a marriage is not whether or not the couple consistently agree on major issues, but how they resolve their disagreements.  My mother was an advocate of never going to bed mad.  Perhaps that is why my parents enjoyed 71 years of healthy and happy marriage.

The next time you are participating in a mediation, I encourage you to think of the students at Middlebury and rather than throw stones, I encourage you to give the people there the benefit of the doubt and see if you can learn something from their perspective which will help you to resolve the conflict.  At worst, it will broaden your views and at best it will provide the goodwill necessary to achieve a lasting agreement.

Best Regards,

Jan Frankel Schau


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