Challenges in Mediation: David’s Case Experience

David Birch

Having recently graduated law school, my perception of the world and the various circumstances within it has changed. Before sitting the New York bar in February I have accepted a position as a conflict resolution specialist (mediator) at the APADRC, given my interest in mediations and conflict resolution. The experience I am getting at the APADRC is invaluable as the skills and techniques will surely be useful in my future career. One way in which my perception of conflicts has changed so early on in my career as mediator is how conflict sometimes just doesn’t have a right answer, solution or side. In situations like these you realize that as a human, you immediately try and decide who you believe is right or wrong and what solution would be fair according to you, even though your role is to neutrally assist both parties to communicate in the hope that they resolve their conflict peacefully. When you constantly change your mind after every development in your case you realize that perhaps there are a lot more things you don’t understand, making you question your capability in helping both parties, as a neutral third party, resolve their dispute.  However, one thing I have underestimated is how feelings, judgment and frustration play a major role in the day to day practices of a mediator and how they feel about themselves after failure.

Staying neutral on the surface is easy but in the few cases I have mediated thus far, staying neutral on the inside is much harder especially when, after 3 weeks of hard work and long phone calls, one party decides they do not want to pursue mediation for unclear and misunderstood reasons. In situations like these you may sometimes forget that your role is to help the parties get what they want out of the process and if that is not to mediate their resolution you have to respect it. One of my first cases was a neighbor dispute where one retired South American partywas so unhappy with the neighbor’s behavior that it made the party feels  like a prisoner in their home, scared to leave or try to resolve the matter. In the beginning of the mediation process, emotions where flowing as well as tears, desperation and panic. What to do now? It was the question being repeated constantly over the phone as a seemingly proactive party was determined to resolve this nightmare once and for all. During the first few telephone conversations it became clear, at least from our perspective, that the party could not keep living this way. But, determination quickly turned into doubt as the party started questioning the reasoning behind the decision to pursue mediation and what resolutionscould realistically be reachedthat eventually, with every phone call, the possibility of resolving this conflict through mediation became ever less likely. Unfortunately, one of my first cases made me feel very insignificant.

When one faces the reality that their efforts have only resulted in failure, they can react in a variety of ways. Failure in the above case was due to the fact that I was not able to help the party neither solve their problem nor convince them that pursuing mediation is worth a chance because of how unhappy they were and how it seemed it could not get any worse. I really tried to help the party. I used all my efforts, gave all of the speeches I could think of, tried on a number of days to see if she had changed her mind but all attempts ended in failure. When you try your very best and still fail it really makes you question your capabilities and your character as well. You begin to ask questions; did I do the right thing? Did I say the right things? Did I do enough? Was there anything else I could have done? Would someone else have been able to do better than me? It is clear that this is not good for the confidence of a mediator. Your doubts can quickly turn into quicksand, sinking you deep into a hole of self doubt which can be hard to come back from, especially since your next case is always just around the corner. What I have found is that you have to always believe that after you have tried everything and tried your best in attempting to help any party that any failure is due to their actions and not yours. You have to remember that you are granting them the opportunity to try and resolve their conflicts and that any conflict which fails to be resolved is because of their reluctance to resolve it and not your inadequacy. Nobody has a one hundred percent success rate at anything and given that some cases can be so complex, where there is no right or wrong answer, or right or wrong party, you always have to remember that some cases will get resolved thanks to your efforts and that those resolved cases have made a big difference to the parties involved.

Another of my first cases concerned ownership of a dog. It started off as a clear case of miscommunication, two parties where not sure who had the rights to the estate of a deceased acquaintance. After much communication, mainly through me, it all came down to who could claim the deceased dog and this is a perfect example of a story which has no right or wrong answer.  One party claimed the deceased did not want the other party to have the dog and therefore passed it to their name while, the other party claimed that the dog used to belong to them and that they would love it and care for it.This party had an emotional attachment to the dog due to its significance earlier on in their life; this party had to part with this dog due to abuse suffered by the deceased a number of years ago.  Who deserves the dog? Who should have the dog? Which side is telling the truth? Does the truth matter? This scenario depended solely on the negotiations between the parties, as it always does, but it is clear there is no easy or right answer. You can never be sure that you have the whole story or the correct story but what I have learnt is you have to remain neutral and eventually, since mediation is voluntary, both parties after discussing the facts come to a resolution which they believe is fair. Remember, mediation is all about helping both parties get what they want through mediation, or as close to that as possible.

A mediator will always get emotionally vested in a case, we do what we do because we care about helping but a mediator can never let their feelings influence how they conduct their case, NEVER. However, there are circumstances where the proper authorities must be informed of the details of the case, for example; child abuse, death threats etc. A mediator must always follow procedure and conduct the case neutrally and proactively. Eventually, when the all the facts are laid out in front of the parties, they will decide what they consider to be a fair resolution in light of those facts and the mediator, must always remember that all the progress which is made has happened due to his or her efforts and that any failure was because of the parties not being able to reach a resolution and not because of the mediator’s conduct or inadequacy.

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