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People are not programs

October 23, 2013

While I am prepared to ask those identified as offenders to open mediation by “telling [the ‘victims’ by name] what you did [having settled at intake that by consenting to mediation they have done something that has triggered the mediation], why you did it, and please add anything else you would like to say to [the ‘victims’].”  (This happens to run counter to some training I have had that parties should first be asked to talk to the mediator, before they are weaned into talking directly to each other.)  I am a minimalist in that I try to keep my prompts as open and non-directive as I can imagine, to allow parties to create their own substance and issues among themselves.  I hope in effect to make myself disappear from the conversation as it takes its own course, ensuring only that everyone in the room, such as family members and co-mediators, have their turns as entering and re-entering the discussion.  I would begin that process by asking “victims” to describe their own experience to “victims,” to say whatever else they wanted, and to ask any questions they had to those who had spoken before them.  While parties to mediation are not required to reach any written agreement, they invariably did in my experience.  As often as not, parties started discussing what they wanted to do and ask of one another without my having to suggest that they begin doing so.  Parties generally ended up literally dictating their own terms of agreement.  On rare occasions, I or a co-mediator might propose a term.  One instance comes to mind:  where a volunteer at an animal shelter had taken a pit bull puppy to mate and breed with his own puppy, I proposed that he might have his pets spayed/neutered; the shelter director ended up offering to pay for the service, and the owner agreed.  Above all, I wanted parties to feel and see that they, not others for them, had invented their own settlement.  My favorite settlements were those whose terms no one, myself included, had foreseen going into mediation.


To me, the differences in mediators’ style boiled down to what any of us who came in believing was necessary to maintain our own sense of “control” in the situation.  You can see the same differences in how people act in formally constituted control structures.  Thus, many attempts at forming “cooperatives” turn into contention for doing what “I know” needs to be done—a competition for setting terms of how things get done.  Or in formal bureaucratic structures, as in policing, many are those who bend the rules to accommodate the interests and concerns of parties to conflict in the situation at hand.  Thus, while in his 1968 book Justice Without Trial: Law Enforcement in Democratic Society (4th edn. 1994), Jerome Skolnick distinguishes three styles of policing: those concentrating on enforcing the letter of the law, those who in “watchman” style impose order, and those who see themselves as in service to the populace, individual officers within forces run the range of these styles as individuals, regardless of whether the force is located in an urban “high-crime” area or a supposedly quiet and largely peaceful upper-middle-class suburb.  For instance, in 1971 when I was gathering data for my dissertation on how police decided whether to report offenses, I rode with officers who were proud that they had never had to resort to arrest in moments of public disorder, while others saw themselves as riding into battle, prepared for combat and often finding the need for it.  You can impose an organizational structure on people, but you cannot make them change the cultural frame within which they apply or bend the rules to gain control of their relations there.

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