In a slump and avoiding the last two papers I have to write. Will do anything other than write them so it helps to warm up with some other ideas, like talking about mediation and what I have observed. The challenge is not talking about conversations and ideas in private, it is about doing it in a way that makes sense and can be shared with others without breaching confidentiality.
This is a clumsy warm-up, but leads to a bigger idea and a bigger task at hand. It is something I have no solution for, but need to address as the next year goes by and findings become more solid.
The people and situations are vague in the effort to keep the real parties’ identities obscured.
I recently observed my first real mediation case after doing role-plays and case intake for the last year. Case intake is something that I particularly enjoy because it gives a direct view into the state of The People. They call in distress and ready to go to court, having just dealt with police, or any number of other interactions that have pushed them to seek help from professionals. They need to be told that our goal is to keep them out of court and protect their friendships, finances, reputations, and general outlook on humanity. Litigation can, in some cases, be a grueling process. It takes a lot of time, is costly, and more importantly: it can destroy relationships.
People don’t believe us when we tell them that they can resolve this without months and months of paperwork. They think there’s some kind of catch, but there isn’t. They often are shocked when you talk to them for an hour about their issues, options, and move them forward with referrals if mediation is not currently appropriate for them. People are used to talking to robots and customer service representatives who rush them off the phone. They don’t know what their resources are or even what Alternative Dispute Resolution is. People have been conditioned to distrust anything that seems too helpful and doesn’t cost a lot of money. We try to take the weight off them and the city.
I am required to go in as observer on my first case and that means do not speak or make expressions of any kind. Take notes on as much of what is being said as possible; not just on the parties, but the mediating panel as well. Do not offer feedback to the mediators until they have debriefed and are finally ready to ask for all my notes and feedback.
When we get called on to take the case the summary is only a sentence long and simply describes the issue and relationship of the parties. We don’t want to know more due to bias potential. My first observation: do not assume that because the issue sounds simple and straightforward that the mediation will be too. Expect it to be complicated and if it isn’t, then be grateful for the mental rest. I eat a lot beforehand so I stay relaxed, and hide behind my glasses so no one can see my eyes when I get emotionally drawn in or potentially raise an eyebrow out of reflex. Making expressions when the parties are talking can derail the entire process. Often when they are accused by other parties of a particular offense one of them will look over to see what you are thinking. Who am I siding with, they wonder. We are not siding with anyone, we are leading them to a solution.
Of course we have opinions on the matter and will talk about it all privately and in detail later. The frustrating thing about this process is that often the actual problems and solutions are so obvious but you simply can’t yell out loud what you think they should say or do. All you can do is keep a straight face and ask well-crafted questions.
The mediating panel were all attorneys. During our pre-brief I noticed that they seemed nervous, so I checked in with them: “What is the temperature of the room right now? How are you all feeling?” They all agreed that it was a bit electric, especially since we just had word that one of our parties was now maybe not showing up. This is very common for people: they get nervous and try to flee at the last minute. But luckily half an hour passed and they decided to attend after all. I asked the panel why they felt nervous, being in their profession it seemed like it would be easy for them. They told me that mediation in this forum was the time they come face to face with very private and raw human emotions. Their fields of practice just don’t always place them there. They crave the deeper level of conflict and communication that allow them to spot physical and emotional cues as well as bids and deflections. It is also gratifying for them to help people on the ground with what hopes to be fairly basic issues.
The parties arrived and immediately defense mechanisms went flying, it happened really fast. I can’t tell the details but I will put in what I observed:
People will try to lead you down random paths about irrelevant topics to avoid answering questions that may threaten the picture they have painted. Manipulation is used by all parties; sometimes consciously, sometimes not, and they need to be kept on track. Do not let them go down a random scenic route of their lives that has nothing to do with the situation at hand; ask them questions about the topic until they can’t distract any more. This sounds interrogative, but it can happen in a way that isn’t confrontational.
It is possible to unravel the truth without shaming someone. It is not done to judge them, it is done to better understand and sometimes allows them to “own” their role in the situation and possibly extend an apology. It has to be done, otherwise the issue will not be resolved in three hours. This case in particular went on for 5 hours, our brief went on for two, and we were so keyed up we had to go out for 1 am food just to talk ourselves down.
Exaggerations are used to validate choices and behaviors that may have turned out to be unwise. It is important to ask them to talk more about the “verbal abuse” they endured by the opposing party, which justified their next defensive move. What originally sounded like a monster roaming the halls abusing everyone was a person who got mad and yelled only once. This doesn’t mean that the panel is taking sides, it is a way to illuminate reality for the parties so they can decide on their own how they can mend the situation.
Focusing on an issue or moment in which the parties can come together and solve a problem can relieve them for a moment of the other issues that they are fighting about. For instance: they had an opportunity to work together to get the freeloading crasher out of the house. I wanted the panel to ask them what they thought about meeting up to kick the crasher out, but that didn’t happen.The mediators glossed over a chance to have they share a common need. Everyone insisted that the main party do it since they were the one that allowed this situation to go on. That feeling was valid, but it still could have been an idea to explore: collectively acknowledging why each of them wanted crasher gone would help them unify and make it easier to kick someone out, which no one likes doing.
They did not resolve the issues and in the end refused to sign the agreement. We did come up with several agreements that would have helped them. But as in most relationships, there is the idea of relational dialects; opposing forces at play to create deeper more complicated issues among the parties and also creating a certain type of unity despite their efforts to downplay that unity. In the end, after threats were made, accusations flew, and it seemed like there was no hope for the matter; they stood side by side, wanting to have a copy of the agreements. They also said they would absolutely come back for round 2. I was amazed by this. Why would the one party who insisted on suing the other regardless of the mediation want to come back? Because the need for distance is outweighed by the need for harmony? They had decided that they were never going to work it out, but they wanted to take the agreements and refer to them nonetheless.
The problem arose when they were told they actually have to sign the agreement. They were afraid to sign anything even though we told them that this was just to allow us to release the agreement without one of them coming in later and saying they didn’t want that information open. This is a perfect example of relational dialectics: They distance themselves, yet create a situation in which they can work together: reading the agreement at home, but again more distance in lack of trust (in themselves?) to honor the agreement and lack of trust in the others to honor the agreement as well as honor the need for distance.
The cultural issues they were having was related to closeness vs. distance in that one of the parties felt the other was too “friends-y” and annoying. This party was from a country that is generally not known for being as open and communal as the current environment they find themselves in and find any closeness other than passing in the hallway as uncomfortable. However, they allow their pets to cuddle with the other party that they dislike anyway because the pets need love and it is the one time everyone feels peaceful. They also enjoy collaborating on projects that they are all passionate about. The push and pull is almost nonsensical from the outside looking in, but common in most human interactions. What we deem as personally unimportant or petty can be a huge problem and offense for someone else.
I can’t go any deeper into it, I think I’m ready to just do the paper.
The main issues to them:
Respect of communal space
*My observed issues:
Unaddressed psychological and physical health concerns
The Housing Crisis
The housing crisis is something that comes up again and again in case intake and now here in final mediation. The level of the crisis is deeper than people realize. People are living in horrific conditions and are staying in unhealthy relationships with family, roommates, and romantic partners simply because they have no money and no place to go.
In this case, these particular parties all have skills, education, and are established in their fields, but are still living with too many people in a stressful environment and are terrified of losing that. They have no options. Threatening to move is a hollow threat and they all know it. Threatening to sue was a bad move for one of them because just the threat itself cast a darker shadow over the situation, making it hard to trust them as a cohabitator.
People have called with some housing stories that are just too terrible to comprehend. Bedbugs everywhere, crazy and/or violent people in the communal kitchen, drug dealers running business in the hallways, women feeling unsafe in the laundry rooms and no one cares, or there isn’t enough help or guarantee of safety in reporting. Plus, the police just send them to us because they are overloaded with calls. It is inhumane and wrong what people are going through.
That is the bigger task at hand and I have no answers on how to resolve that either.