Effective Mediation: Finding the Path Past Right and Wrong

“Out beyond ideas of wrong and right, there is a field. I’ll meet you there.”
13th-century Persian poet, Rumi.

When I heard this quote during a Pepperdine mediation clinic, it instantly resonated. It succinctly distilled my mediation style, my belief that to resolve a dispute, a mediator must guide the parties past the limitations of duality (I am right/good; you are wrong/bad) to a realm of understanding and acceptance.

What is being understood and accepted can vary widely. It may be the understanding that the law does not support your legal position, that there is evidence that undermines your case, that you are not as sympathetic as you believe and, as a result, you must accept that you face more risk than you initially calculated. It may be the understanding that continued litigation will cost hundreds of thousands to millions of dollars, not to mention the immeasurable cost of the accompanying distraction and emotional stress, and, as a result, acceptance that business judgment must override principle in specific cases.

Yet, my experience as a litigator for over twenty years and now as a mediator makes it clear that it is not an easy path to get people into that field beyond right and wrong. Everyone understands, in theory, the utility and value of settlement but, in many situations, one or both sides do not want to settle on objectively fair terms because those terms do not meet their subjective expectations. Their motivations and long-held belief that “I am right and you are wrong” and desire to win, blind them to the benefits of the resolution being offered. Thus, the case continues. And, yes, someone eventually “wins”; however, when the costs of that win—whether economic, psychological, reputational or otherwise—are considered, what value is the win?  

Thus, in becoming a mediator, I focused my training on how to effectively and persuasively bring people into the right mindset to listen to and properly evaluate a settlement. I have learned and applied much from the varied resources I have read and listened to, perhaps none more so than Adam Grant's Think Again. The book makes a compelling case for rethinking our deeply held beliefs and the power of thinking like a scientist when we are surrounded by people who are more akin to preachers, politicians, and prosecutors. Adam’s perspective echoed my many experiences of trying to bring people together and settle disputes. I’ve seen and tried a variety of approaches and know what does and does not work.

What does not work: adopting the thinking of duality by telling people their views are wrong; becoming—or being seen as—an advocate for the one side; blindly accepting the views being espoused; arguing, threatening, and otherwise trying to bully a person into a settlement.

What does work: scientific thinking; active listening; open communication; remaining neutral; being curious about people’s stories, motivations, and goals and trying to facilitate a resolution that takes these factors into account.

It is through this patient approach that I find even those skeptical of the mediation process eventually get to Rumi’s field; a field that remains just as important today as it was 8,000 years ago when Rumi first spoke about it.