The judge started by separately advising the clients from the bench. In each room he said that patience was the key. He said that his job was to try to resolve the case; and he said that everyone would probably know by the middle of the afternoon whether it would be possible to settle, or whether he would just let everyone know what the answer was. He was in full-on evaluative mode.
First he heard opening statements in one room, and then again in the next. In one room, one of the parties chimed in “you should be aware that we are ready, willing and interested in talking directly to the other room – there’s no need to keep us separate.” Well, the judge said, “it’s possible, that at some point, it will make sense for the principals to talk to each other, but for now remember the point I made about patience.”
Hours passed with the judge going back and forth between rooms. He gained trust by acknowledging some of the weaknesses of each case. Each party hoped that he would be able to persuade the other room of his evaluations of these weaknesses.
Finally, the lawyers came together. These talks were actually getting productive. By hour six or seven, settlement proposals were being exchanged. By hour eight, the judge’s time ran out, although a deal was almost there. The judge just let everyone have it. He was done for the day.
Both sides ended up frustrated in the extreme. Each party was more resentful than ever: each felt they had given way too much, and by the very end they just wanted to demolish the other room.
I awoke with a shudder: fortunately it was only a nightmare!
Surely, the word mediation does not mean this sort of process! Wouldn’t it be good if the parties had the opportunity and responsibility to make the decisions about how they interact with each other? What would have happened if someone competent at facilitating a face-to-face conflict conversation had conducted the mediation?
People in conflict are seeking empowerment and a shift in recognition. They want to avoid being victimized. When they gain confidence that the process isn’t victimizing them, then they tend to stop victimizing each other.
Inspired by Dan Simon’s “Bad Day at JAMS” posted at the Institute for the Study of Conflict Transformation.