A Mediator’s Tools

By: Aaron Calhoun | WAMS Staff

If this organization were a fairy tale character, it would be ‘Doraemon’, because it always meets the needs of the people it serves, no matter what that need is. This organization pulls tools out of its pocket that solve any problem, and it works across generations and cultures… just like Doraemon.”

‐ A WAMS admirer

It is not every day that WAMS is compared to a famous Japanese cartoon character, but if one takes the time to read about the exploits of Doraemon, the famed robotic feline from the future, then the comparison does not sound so farfetched.

Doraemon made his first appearance in print in 1969; the stories centered on a fifth grade schoolboy, Nobita Nobi, and the robotic cat’s efforts to help his friend. Nobita would come home from school and confide in Doraemon about a problem he had encountered that day. The latter would offer immediate advice on how to handle the issue without conflict or confrontation.

Likewise, the first tool used by a WAMS mediator is administrative guidance to all sides in advance of mediation, typically with the help of WAMS Case Administrators. Parties are encouraged to mediate only when the case is “ripe”, after direct negotiations have been undertaken. Pre-hearing memos that identify each party’s view of the dispute are encouraged, as is the participation of anyone with settlement authority. In some instances, this initial preparation leads to a better mediation outcome because the parties are more educated and prepared for the process from the start.

In Nobita’s case, advice alone was never enough; he always asked his feline friend for a device that could fix his problem or help him get revenge against an adversary. At Doraemon’s disposal were futuristic wonders he could pull out of his pouch like ‘The Anywhere Door’ (a door that opens up to any location the user wants), ‘The Voodoo Camera’ (a camera that takes a picture of a person and then creates a voodoo doll), and ‘The Dream Reader’ (a television that allows someone to watch what another person is dreaming about). Although Doraemon’s gadgets sometimes caused unexpected problems of their own, by story’s end, Nobita’s problem would be resolved in some fashion and the clear moral would always come to light: It is better to work through your problems than to take the easy way out by avoiding them or fighting back in anger.

For mediators, the gadgets in their pockets are the tools of their trade that have been proven to be successful and, unlike Doraemon’s, rarely lead to more  trouble. Beyond basic attributes like patience, experience, persistence, and objectivity, an effective intermediary must have the intuition to pick up on cues during mediation, both verbal and non-verbal, in order to develop the strategy to be employed in moving the negotiations forward. For instance, mediators sometimes find it necessary to ask the plaintiff’s friend or relative to “take a break” from the mediation to permit the plaintiff’s voice to be heard. Additionally, there must be a bond of trust created between the parties and mediator that will allow everything from random thoughts to deep secrets to be shared. Sometimes in mediation, information is disclosed for the first time that proves pivotal in finding resolution. One such example was the revelation in a recent mediation of the defendant’s potential bankruptcy filing. Because of that prospect, the plaintiffs chose to settle the case for an immediate and guaranteed payment rather than wait for trial and risk being embroiled as creditors in the defendant’s bankruptcy proceeding.

Problem solving skills are imperative due to the solutions mediation allows for that the courts do not (e.g. meeting non-monetary needs). Margo Keller and other WAMS mediators have used Skype successfully to involve unexpectedly absent participants whose visual interaction was an important factor in reaching settlement. It also does not hurt to have a timely sense of humor that can temper the stress and exhaustion that intense negotiations can cause—Don Kelley is well-known for his efforts at levity. It is an effective way to remind the parties involved that mediation is a nicer, more humane process than going to trial.

Doraemon and mediators alike have the ability to quickly figure out what is at the core of an issue and how to resolve it. By listening to parties in need, offering consultation on how to come to a peaceful resolution, and occasionally using outside-the-box methods, all have the tools at their disposal to resolve disputes. Whatever the case might be, it is good to know that help—whether it be in the form of a mediator with extensive experience and negotiating tools or a robotic cat from the future with a gadget-producing pouch—is there when it is needed.

 

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