Letting Clients Take Responsibility

Arnold Zeman, is a transformative mediator in Ottawa, having studied at the Institute for the Study of Conflict Transformation. In this story he describes how his clients took greater responsibility for improving their situation as a result of Arnold supporting them right where they were.

Recently, I mediated with a young couple where neither of the two had completed high school. As a transformative practitioner, I tried to ensure that I supported, rather than supplanted, their control of their conversation, both what they wished to say to each other and how they wished to say it. Many mediators who take the three-day basic transformative mediation training often wonder whether this approach can be helpful only to people who are articulate and have a post-secondary education. One of the beliefs transformative practitioners have is that integral to human nature is continuing internal work in each of us to reconcile our need for personal autonomy with our need for openness and responsiveness to others. Indeed, this is exactly where conflict has such a pernicious effect: both these deep needs are frustrated and the quality of interaction deteriorates. Time and again, as was demonstrated to me in the case with the young couple, this belief in basic human needs for agency and connection is validated. Verbal skills are not the necessary condition for how helpful a transformative approach may be to mediation clients; rather, it is the basic human need to understand one’s self and to be understood by others.

But I’m getting ahead of myself in discussing this case that powerfully demonstrated to me the power of decision-making on both process and substance when it is vested entirely in the clients. The first 90 minutes of the mediation unfolded with positions being staked out in increasingly heated emotion: the quality of the conflict interaction was steadily degrading and the clients were stuck. One then requested a break to go outside and smoke a cigarette; the other client used the break to smoke a cigarette as well. As far as I know, they did not communicate with each other during the break. When the mediation resumed, the tone of their conversation had changed markedly. One offered a revised position with a concession to the other; this offer was quickly accepted. This turn in the conversation effectively settled all but one of their issues, which they agreed to address subsequently. So what happened here?

Often practitioners when faced with an unanticipated ‘positive’ development in mediation will answer this question by invoking the ‘magic of mediation’. In other words, not being able to explain what happened, they revert to talk about the art of mediation and how settlement can rise like a phoenix from the ashes in some indescribable and indefinable way. Speaking of ashes, one could just as easily in the case I’ve been discussing explain the change in terms of the magic of smoking! Neither explanation is satisfactory, and both illustrate the disconnect between mediation theory and practice: as Yogi Berra is supposed to have said, in theory, there’s no difference between theory and practice, but in practice there is. What if there was greater consistency between theory and practice in mediation?

As a transformative mediator, I would explain what happened here in the following way. I supported the clients’ conversation, the points they wished to make to each other, and their positions on the different issues under discussion. An element of this support consisted of my making the observation at a judicious moment in their conversation that they seemed quite far apart on the issues, with a brief summary of what their respective positions were. I then turned it back to them by asking what they wanted to do having reached this point in the conversation, e.g., did they wish to end the mediation; did they want to talk about something else in their conversation; did they wish to think things over and schedule another session to talk some more. I mentioned that this was not an exhaustive list but simply illustrative of the sorts of decisions they could now make. They didn’t reply directly to my summary of their conversation or my question about what they wished to do. Instead, they resumed their negative, unproductive conversation. After an interval of party-to-party interaction, I repeated my summary of what they had been talking about, asked whether they were finding the conversation helpful, and what they now wished to do. Again, they resumed the downward spiral of their interaction. This cycle of summarizing and indicating a decision point may have been repeated one or more times further; frankly, I can’t remember. The important point is they then called for a break and came back to the mediation with a concrete give-and-take proposal that led to an agreed outcome. By limiting myself to interventions in their conversation that simply summarized what they had been saying and asking what they wished to then do, I took on no responsibility for getting them unstuck. Rather, I would argue that it became very clear to them that both their differences and the process for addressing them were their responsibility. Given their understanding of their options and resources, they could make whatever decisions they felt called on to make. In simple terms, I accompanied each of them to the edge of the cliff and asked what they wanted. In the event, neither wished to jump (and pursue their dispute through litigation); apparently, after thinking over the situation, they both wished to resolve matters themselves. Key to what took place was their accepting personal responsibility, their reflecting on what possibilities were available, and their making their own decisions about their lives. Instead of offering them my problem-solving abilities, I helped by supporting their conversation wherever they decided to take it: from high emotion to an eventually quieter, more reasoned tone where one made a constructive offer to the other.

Mediators using other models may reply that they too provide such support from their ‘tool box’ of interventions. The point though is my interventions are not part of a repertoire of techniques to assist parties, by separating the problems from the people, to reach settlements that the mediator considers fair. Rather, my mediator moves are carried out with only one objective in mind, the only objective in transformative practice, namely support for each party’s shift to relatively greater empowerment and for each party’s shift to recognition of the other. Whether they settle or not is entirely up to them, as are all other decisions before them.

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by Arnold Zeman

Arnold Zeman is a transformative mediator in Ottawa Ontario, where he has a private family mediation practice and is on the court roster.