[Reprinted with permission from the American Bar Association Dispute Resolution Magazine œ Fall/Winter 2002] Paradoxes of Mediation By David A. Hoffman According to Zen Buddhism, one way enlightenment can be achieved is by holding two contradictory thoughts in the mind simultaneously. This, I have found, is more easily said than done. Perhaps I am handicapped in this endeavor by virtue of professional training: as a lawyer (or, as the joke goes, recovering lawyer), my mental functioning has shifted decidedly to the left brain. In fact, I know one lawyer-turned-mediator who describes law school as a process in which the left brain circles around the right brain and eats it. If that is the case, learning to practice mediation has presented me with the task of recovering the right-brain function œ the place where creativity and non-linear thinking flourish. Indeed, restoring the balance between the two hemispheres may be necessary to succeed at mediation because the work is inherently difficult, multi-dimensional, and requires not only logic but also inventiveness and a tolerance for ambiguity. Managing complexity As mediators, we must hold in the mind simultaneously the perspective of each of the parties œ perspectives that often have little in common with each other and are usually contradictory or mutually exclusive. As we manage the interactions of these parties, we find ourselves enmeshed in a breathtakingly intricate matrix of psychological issues, negotiation dynamics, communication problems, subtleties of inflection and body language, barriers of gender, culture, race, and class, and disagreements about legal issues and the facts that gave rise to the dispute. The very complexity of the work is one of the things that make it so appealing: no matter how much experience we have, no matter how skilled we may become, mastery will always elude us. For people who love challenges, mediation is a natural calling. The division of labor between left brain and right brain is a good metaphor for considering the paradoxes of mediation because it exemplifies the way in which, as mediators, we often need to be engaged in multiple œ often mutually exclusive œ activities simultaneously. I am also struck by the similarity in these paradoxes to those identified by psychotherapist and scholar Sophie Freud in her article, —The Paradoxes of Parenthood: On the Impossibility of Being a Perfect Parent.“ 1 Freud‘s article describes the missteps that we make as parents as inevitable because of the conflicting responsibilities involved in raising children. For example, we must [Reprinted with permission from the American Bar Association Dispute Resolution Magazine œ Fall/Winter 2002] protect them, while at the same time letting them make their own mistakes. We must praise and encourage them, but without overdoing it, so that they will learn how to manage criticism. Freud also identifies the dilemma of —fostering simultaneous attachment and separation“ as —perhaps the most difficult parental task“: It involves promoting individuation and autonomy, essential life goals, while also offering the child an experience of attachment profound and meaningful enough to evoke a lifelong capacity to love, feel, and care. [This is a] paradox of parenthood: disenchantment with and rebelliousness against parents is a necessary part of the relationship; a [parent-child] relationship is flawed if it remains conflict free and apparently totally harmonious. (Freud, p. 183.) The moral of Dr. Freud‘s article is that perfection in parenting is unattainable because there is no perfect balance of these conflicting duties. Certainly, this is true from the standpoint of our children who, as silent critics or noisy detractors, often tell us we‘re doing our work as parents wrong if we‘re doing it right. And it is unattainable in our own eyes as well. Our children are mortal and therefore fallible œ in a word, imperfect. Likewise, our efforts as parents are inherently imperfect. Similarities to mediation Is our work as mediators different? It seems to me that mediators try to balance some of the same tensions and deal with some of the same paradoxes that parents encounter. For example, if the parties in a mediation leave the process annoyed with us but reconnected with each other, have we succeeded or failed? Do we not have to manage the tension in mediation between attachment and separation, relationship and autonomy? I have had occasion over the years to observe some gifted mediators at work and to talk with lawyers about their experience with these same mediators. And I have been astonished to hear mixed reviews on mediators whom I regard as some of the most skilled practitioners in the field. —Perhaps the mediator had a bad day,“ I thought. But more often, I suspect, the mediator‘s style did not fit the particular people or circumstances of the case œ the techniques they used were a mismatch for one or more of the parties or their lawyers. Or perhaps the inherent tensions in the perspectives or negotiation styles of the parties made success impossible. In short, the mediators may have found themselves in a situation where no amount of skill would have sufficed. [Reprinted with permission from the American Bar Association Dispute Resolution Magazine œ Fall/Winter 2002] Striving for perfection I do not underestimate the difficulty of getting it all right œ indeed, the complexity of the work is one of the premises of this article. What I am suggesting is that by exploring the fundamental and to some extent irreconcilable tensions in what we do, we mediators will gain a fuller understanding of how very difficult œ indeed, sometimes impossible œ our work is, thus enabling us to do a better job while relinquishing the ambition of doing a perfect one. We all know the saying about the perfect being the enemy of the good. So it is with mediation. So what are these irreconcilable tensions œ these paradoxes, if you will? First, I outline a group of micro-level paradoxes, describing tensions in the practice of mediation, and next a group of macro-level paradoxes for the field of mediation as a whole. Micro-Level Paradoxes Mediator —pressure“ vs. party autonomy Robert Baruch Bush and Joseph Folger have pointed out the ways in which mediators unavoidably affect or steer the process of mediation, even when they believe that their exclusive role is to carry out the parties‘ intentions. 2 Their solution to this dilemma is to participate in the process in such a way as to promote empowerment and recognition. For other mediators, the solution is to promote settlement. Their dilemma is different: how to manage the tension between parties, each of whom wants the mediator to apply settlement pressure to their opponents (through reason, appeals to emotion, and other means) but not to them. In his article —Mediator Pressure and Party Autonomy: Are They Consistent with Each Other,“ mediator and professor David Matz notes that —for a mediator to encourage the free expression of a party‘s will, the mediator may (and in some circumstances must) . pressure a party to enable that party to achieve autonomy.“ 3 For some mediators, there is a paradox within this paradox, because often the most effective —pressure“ is simply agreeing with the parties. As mediator Robert Benjamin has noted in his pair of article on mediators as —tricksters,“ mediators sometimes use what are known among psychotherapists as —paradoxical interventions“ to move the process along; that is, suggesting one thing while meaning another. 4 For example, when we talk with a party who is hell-bent on proving her case in court, we might discuss all the advantages of a [Reprinted with permission from the American Bar Association Dispute Resolution Magazine œ Fall/Winter 2002] trial because discussing the disadvantages would simply deepen her resistance to settlement: Only by first exploring and supporting the parties‘ thinking and encouraging them to hold on to their entrenched positions can the mediator move them to allow themselves to consider other options. Thus is the paradox: intensifying the commitment to a stated course of action allows for the lessening of that commitment. Conversely, [disagreeing with the parties‘ views] will only serve to bolster the resistance. 5 As a mediator, I have found that in the final, hard-bargaining stage of a mediation in which the dispute often boils down to money and a zero-sum negotiation (after full consideration of the possibilities for mutual gains, integrative bargaining, and —expanding the pie“), I am often skating a fine line between the parties‘ desire to get the deal done and their annoyance with me for extracting yet another concession from them. This situation presents an equally paradoxical dilemma for the parties, because they must skate the line, in their communications with me, between resisting concessions firmly enough to achieve their bargaining objectives without overdoing it and sabotaging the opportunity for a settlement. 6 Mediator —presence“ vs. party control Another paradox can be found in a phenomenon noted by a number of mediators: the positive impact that a mediator‘s —presence“ can have as a factor in promoting resolution. 7 The reasons for the effectiveness of a mediator‘s presence are not only difficult to define, but they also vary from one mediator to the next. Some mediators seek, by their demeanor, to —bring peace into the room.“ 8 Other mediators may, by virtue of their charisma, credibility, or charm, create an environment in which the parties find themselves motivated to achieve settlement. And yet, as mediator Gary Gill-Austern has pointed out, the very effectiveness of the mediator‘s presence is problematic: The mediator‘s role is complex, even paradoxical. A mediator must be remarkably and uniquely present œ a full participant.