Running the Resoluton Rapids - Adventures in Mediation

Tom Crowley - Hawaii Mediator - Arbitrator - Attorney

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Mediation

Running the Resolution Rapids: Adventures in Mediation
by Thomas E. Crowley

1. A RIVER RUNS THROUGH IT: The Hidden Power of the Ritual of Resolution

When mediation is done right, it's like a river, with one will, one purpose, one strength: to flow to freedom. The Resolution Rapids may be filled with powerful waves and dangerous rocks, but with a good mediator as a guide, it can carry us to the freedom of a fair and dignified resolution.

From personal experience, we all know that disputes take on lives of their own. The kind of life a dispute takes on is usually determined by the procedures used to handle it. There's a hidden power in the "rituals" used to deal with disputes that can help or hurt their resolution. Like a river running down to the sea, each ritual of resolution imposes its own path upon a dispute, profoundly influencing its outcome.

Not all resolution rivers are equal. Bruce Springsteen could have been alluding to litigation when he sang: "Like a river that don't know where it's flowin', I took a wrong turn and I just kept goin'." The ritual of litigation often prolongs and exacerbates disputes, and nobody knows how it'll end up, because litigation takes control away from the parties. Litigants may start out trying to vanquish each other, but can end up getting a whuppin' from litigation itself.

With the ritual of mediation, however, the parties maintain control over both the process and the outcome. They aren't stuck with the confining procedure or narrow verdicts offered by trial. In mediation, an impartial third person helps the parties negotiate their own settlement.

To find out more about the power of the ritual of mediation, come paddle with me down the Resolution Rapids. As your river guide, I'll show you how I mediate disputes. This is what works for me.

2. LEADING THE WAY: River Guides and Mediators

Text Box: A mediator in a dispute is a lot like a river guide on the rapids. A river guide is an expert in reading the river, and can sense underwater rocks and currents. As a mediator, my job is to read the underlying interests and hidden settlement positions of the parties. A river guide is an expert in swift water navigation and rescue. As a mediator, I help the parties navigate the dispute, and rescue them from impasses. A river guide is an expert in getting both sides of the boat to paddle together, to avoid going 'round in circles. My job is to get the parties to work toward settlement, instead of what they'd like to do, which is make the other guy walk the plank.

Most important, whether running river rapids or the Resolution Rapids, the participants place their trust in the guide or mediator. They believe in him, and rely on him. He must know the way, and lead the way. He must make it safe, and rescue them when it isn't. It takes many years and countless runs to be a true leader on the Resolution Rapids.

Before a mediator can exercise that leadership, and fulfill the trust of everyone on board, the parties have to agree to get in the boat. As we'll see next, overcoming the resistance to mediate can be half the battle in resolving a dispute.

3. TAKE ME TO THE RIVER: Getting There Is a Journey in Itself

Getting to the Resolution Rapids is an arduous and uncertain journey in itself. The opponents' mutual fear and fury makes both sides worry that if they fall in the river, they'll drown. While that ain't so, the fear of going under, of being taken advantage of, is real enough to keep many adventurers from coming down to the river.
There are lots of reasons for resisting mediation, such as fear of loss of control over the dispute and concern over its cost. A good mediator will take mediation out of the realm of imagination and into the realm of information. He'll explain that mediation is

Nonbinding. Up until a mediated agreement is reached, either party at any time can terminate the mediation for any reason, or for no reason. Once agreement is reached, however, the settlement is as enforceable as any other contract.
Confidential. Evidence of conduct or statements made in mediation is inadmissible in court.
Cost-effective. On the average, mediation costs less than 10% of litigation.
Fast. On the average, a mediation can be scheduled and completed within two to eight weeks, compared to two to three years for litigation.

No matter what the reason for avoiding mediation, the heart of the response is to treat the resistance to mediate as a separate dispute. To resolve it, we can apply the same rescue techniques used below in "The Eskimo Roll: Breaking Impasse." The key is to create a negotiation within a negotiation -- a play within a play -- to gain the agreement to mediate

4. DROP ME IN THE WATER:Plan on Getting Wet

When we're trying to mediate a dispute, it's hard, at the beginning, to comprehend how arduous, compelling, challenging, mysterious and ultimately transforming the journey of running the Resolution Rapids will be. Before we got hit with the dispute, we expected our life to be a gentle float downstream. Even after we got caught in the swollen and angry waters of confrontation, we hoped maybe we wouldn't get wet.

Plan on it. The challenge of turning and facing disputes is as natural as it is unavoidable. Fortunately, it's also fleeting, and always less than the thousand little deaths we endure from getting splashed with the glacial run-off of worrying helplessly about the dispute.

Mediation requires the parties to meet face-to-face for the real work of resolving the dispute. You'll definitely get wet on the Resolution Rapids, but with the mediator's help, you won't get hurt.

5. STOP MAKING SENSE: Running the Class V Rapids

River rapids are rated on a scale of I to VI. Class I is easy whitewater, while Class VI is unrunnable. Class V rapids are extremely difficult: the riverbed is obstructed with dangerous rocks, the rapids are long and violent, and getting through them requires expert maneuvering.

Emotionally speaking, most litigated disputes are like Class V Rivers: each party gets continually battered by fear, fury, guilt, worry, embarrassment and pride. Passions form the dangerous riverbed of disputes, causing large, turbulent and powerful waves that pull both communication and common sense toward the river bottom. There's a "physiology of confrontation" which is like a physical addiction to the dispute. Although the dispute is painful, there's a compulsive physiological need to keep fighting, to have the last acerbic word. It hurts so good.

Caught in the litigation rapids, both sides usually stop making sense. They shout epithets for which there can be no apology, and take positions for which there is no reality.

A good mediator understands that Class V Litigation Rapids can overwhelm the parties' ability to think or talk straight. Using his paddle as a rudder, he steers the parties to safer waters by commencing the first phase of the mediation: talking story.

6. ECHO CANYON: Talking Story

When paddlers ride rapids which plunge through a narrow canyon with sheer rock walls, their shouts echo down the river valley. In mediation, it's crucial that the parties' stories, thoughts and feelings about the dispute get echoed back by the mediator.

Text Box: In most disputes, the original argument gets submerged by sea stories about the other side's conduct during the dispute. The first thing the parties want to complain about is "the dispute about the dispute," which usually demonizes the opponent.
No matter what the stories are about, the mediator MUST hear them. The way the mediator listens and responds to the story of each party is critical. Abe Lincoln, who as a young guy ran more than a few rivers himself, advised that a leader should listen like a "sincere friend," because that's "the drop of honey that catches his heart." Abe cautioned that if instead the leader dictates to another's judgment, or commands his action, or marks him as one to be shunned and despised, "he will retreat within himself, and close all the avenues to his head and heart."

After listening, the mediator "echoes" each side's story with a diplomatic summary that highlights each party's underlying interests -- what he or she really wants, and why he or she wants it. Like the echoes in a river canyon, these echoes of the mediator continue to call to each side, creating independent bonds of trust and understanding between the mediator and each party. As we'll see, this becomes crucial downriver, in the event the parties need to be rescued.

7. CATCHING THE CURRENT: The Rhythm of Settlement

There is a current, or rhythm, to settlement, and like the quality of mercy, it need not be strained. To catch this current, the mediator needs to focus the parties on the following agenda:

Define the issues in the dispute;
Share information about those issues; and
Agree how to measure the information which is shared.

This current carries the parties toward settlement by reducing their fear of being exploited, sharing control over decision-making about the dispute, and providing the means to make informed decisions.

Once the parties have sufficient information, and know the pros and cons of the available options, they're ready for the whitewater of the second phase of mediation: exchanging offers.

8. WHITEWATER: Exchanging Offers

The unforeseen challenges and surprises in mediation are like the hidden rocks and other obstacles that create whitewater on a river. One potentially dangerous form of whitewater is "holes," where water dropping over a ledge or other submerged obstruction forms a frothy backwash. Holes with strong recirculations can trap a kayak or swimmer, because it's tough to clear the recycling backwash.

Like holes in big rapids, the unforeseen reactions during the exchange of offers during mediation can be nerve-racking. The first offers and counteroffers, which are usually perceived as outrageous, are labeled "a slap in the face." The parties threaten to terminate the mediation, and refuse to even respond to such insults. Trapped in the recycling emotions of a negotiation hole, it looks like getting further downstream is out of the question.

To reduce some of the danger, the mediator almost always conducts this phase in caucus. The mediator invites offers about smaller issues, because they're easier to settle, to build momentum toward resolving the big ones. For each issue, the mediator should ask three main questions:

What would each party like the other side to do to reach agreement?
What would each party be willing to do to reach agreement?
If one side was willing to do some of the things the other party believes will resolve the dispute, what would the other party be willing to do?

During this exchange phase, the Mediator will want to keep the focus on the future, rather than the past, and on "interests" (what the parties really want), rather than blame.

Despite these efforts, the parties inevitably get swamped by waves of impasses, which roam the Resolution Rapids like menacing beasts.

9. THE ESKIMO ROLL: Breaking Impasse

Rolling over -- and going under -- in a raging rapid is so likely that canoeists developed a survival technique that's as daring as it is effective: the Eskimo Roll. Suddenly you're upside down, under the water. The first and hardest thing is not to panic. To calm yourself down, count one--two--three. With practice, you can learn to roll underwater and pop back upright to the surface.

Dealing with impasses in mediation requires the same counter-intuitive response. Instead of fighting or being paralyzed when an impasse flips the mediation boat, you can roll with it by conducting a negotiation about it. In other words, conduct a mediation within a mediation -- a play within a play -- about the impasse itself. This mini-mediation has three phases:

Talk story about what's broken, who's being blamed, what underlying interests are at stake, and what solutions are available.
Exchange offers and compromises to resolve the impasse.
If that doesn't work, create the crisis of a deadline to pop the parties back to the surface of the mediation.

Now you can stop holding your breath

10. BEYOND HERE BE DRAGONS: Reality Testing

Disputants each have their own truth, which is like having half a river map. While not sure what's ahead, each side imagines the trial or arbitration will be an easy float downstream. An experienced mediator, however, has scouted these rivers untold times, and has the "river sense" to anticipate the eddies, waves, holes or fallen trees just around the bend.

The mediator helps the parties "read the river" by asking "reality testing" questions about the dragons lurking in the dark waters ahead:

What is your best case scenario, and what facts, witnesses and law will you need to achieve it?
What is your worst case scenario?
How much will each cost, and how long will each take?
What's the likelihood of each scenario?
What's your fall-back plan?

After the dragons of time, money and risk are drawn on the river map, the parties paddle toward the point of no return: going over the falls.

11. GOING OVER THE FALLS: From Crisis to Catastrophe

Text Box: Running a waterfall is as spectacular as it is dangerous. As they are carried to the edge of the falls, the paddlers see only the horizon line and the tops of trees, not how far down they're going to fall. The acceleration of gravity is heart-stoppingly fast, and even if the landing is clear and deep, the hole at the base of the falls can trap a swimmer with its endlessly recycling backwash. The impact is tremendous, and the consequences can be fatal.

When a final offer is made and accepted, the parties have settled the dispute and avoided the most dangerous stretch of the Resolution Rapids. When a final offer is made and rejected, however, the parties are swept over the falls. They've moved from crisis to catastrophe. To the parties, this is the point of no return. They believe they'll be trapped -- and drown -- in endless litigation.

For the paddlers' river guide-mediator, however, the catastrophe of a rejected final offer means only that it's time to come to the rescue.

12. ALL PADDLE FORWARD! The Mediator's Rescue

Paradoxically, what the parties perceive as utter catastrophe is viewed by the mediator as a decisive opportunity. This far down the Resolution Rapids, three things have happened. First, the parties have confidence and trust in their river guide-mediator, because he listened to them, he's echoed their points of view, and he's demonstrated his expert "river sense" running the dispute's whitewater.

Second, because the parties have gone over the falls via the rejection of the final offer, they feel helpless. They're drifting fast in turbulent waves, they're exhausted, they're cold, they're swallowing water, and they want to go home. They want deliverance, and they want it now from their river guide-mediator.

Third, like a boat solidly wrapped around a rock by the river's tremendous force, parties get pinned against the rock of their positions by the power of the dispute's relentless current. The parties will not come off their position -- get unpinned from the rock -- unless they can do so without loss of face. There's no loss of face accepting the mediator's recommendation. The parties are willing to accept the mediator's recommendation for settlement precisely because it's not the other side's proposal.

Armed with his river sense about the dispute and the need of the parties to be rescued, the mediator can now make his recommendation for settlement. In separate caucuses with each party, he explains that the recommendation is not based on the facts, or the law, or even what the case "should" settle for. Instead, his recommendation is what the case "can" settle for -- what the parties are actually able to perform.

A good mediator, like a good river guide, always keeps in mind that just as saving a boat is irrelevant compared to the safety of the paddlers, settlement must not be exalted over the best interests of the parties. If what the case "can" settle for puts one of the parties in an untenable position, it's better to terminate the mediation and let the parties proceed to arbitration or litigation. Settlement at any cost is never the criterion.

If he sincerely believes that his recommendation is in the best interests of all parties, the river guide-mediator then throws the rescue rope to each party. The mediator pledges to both sides that if they grab the rope and accept the recommendation, the mediator will not permit the other side to capsize the boat by adding new conditions to the recommendation.

With the rarest of exceptions, the parties grab the rope and get pulled to safety. With everybody back in the boat, the mediator calls out "All paddle forward!" Like a river letting gravity do the work, the parties can now let the ritual of resolution carry them through the usually serene waters of drafting and signing the settlement agreement.

13. A RIVER ODYSSEY: The Flow to Freedom

The longer we journey down a river, the more we appreciate it as a living, flowing, magnificent act of nature. The river can take on a mystery and an importance that makes it sacred in our eyes. We may have started out exploring the river, but we end up discovering something profound about ourselves.

A good mediation of a dispute is like a journey down the river. Like a river, the mediation becomes a living, flowing mystery. Its ritual grows to become as sacred as the conflict it encompasses. The reason is simple: Whatever we focus on increases. The change from a focus on fighting to a focus on ritual helps the parties and the mediator reach a settlement no one believed possible at the outset. Everyone may have gotten wet, but they avoided the time, money, risk and stress of litigation, and reached a fair and dignified outcome.

With the right mediator, and the right ritual of resolution, a mediation can transform the experience of fear and despair in the Resolution Rapids to the parties' finest hour. And sometimes, in the quiet moments downstream, away from the thundering rapids, we discover that our odyssey led to a freedom and a personal heroism we thought might be reserved for others.