I’ve always been skeptical of claims that “one size fits all,” no matter what you’re talking about; a more accurate claim is probably “this doesn’t fit anyone well.” This also holds true for conflict resolution. I’ve spent over 20 years negotiating and mediating insurance claims, and even with insurance as being the common factor, a single conflict resolution approach is not appropriate for all matters.
However, many mediators tend to approach every dispute in the same fashion, utilizing the same methods, regardless of the facts and dynamics of the dispute. Instead of facilitating resolution, the mediator can become a roadblock. Or, they can sometimes become a pawn to be manipulated by an experienced negotiator, who will quickly pick up on a mediators’ style and often be able to tell what the mediator will do next (in fact, guessing what the mediator will do next is a popular time-passing activity in many mediations).
A typical one-size-fits-all form of mediation is the court-ordered settlement conference, where the mediator is either a sitting or a retired judge. A litigated matter has nearly always become a “zero-sum” battle, where the goal is winner take all. The mediator then engages in a form of “shuttle diplomacy,” often controlling the negotiations. While these can indeed be effective in terms of the percentage of cases settled, a judge will often try to force the parties to agree with his or her assessment of the case rather than let the parties arrive at their own resolution. This can result in a settlement that greatly favors one side. If a judge had been a plaintiff attorney in his prior life, well, you know what side he is likely to come down on (and the same is true had he or she been an insurance defense attorney). Once a judge’s assessment has been revealed to the parties, it forms a barrier that is nearly impossible to move past.
Don’t get me wrong; not all judges are bad, and neither are some of these mediation techniques. Many judges are, in fact, incredibly gifted and talented mediators, and over the years I have learned much from them. The system, however, often presents a problem. The courts are too busy, and the judges are too busy; this is what fueled the push to Alternative Dispute Resolution in the first place. My point is not to bash judges or other mediators; I’m merely trying to show how a one-dimensional approach to mediation is often not the best choice.
Why creative is better
Many if not most conflicts do not find themselves in the court system, and often situations cannot be resolved by the simple payment of money by one party to another. Especially in neighborhood or workplace disputes, there are ongoing relationships which need to be resolved; this is often more important than resolving the issue at hand.
When a mediator works with the parties to develop an individualized resolution plan, the mediator becomes a true facilitator to resolution. And while often the parties require some guidance, the optimum result is for the parties themselves to “own” the result; this can only happen if the parties have some input into the process as well as the solution. For many situations, a more typical mediation approach is fine. For other, more complicated matters, a more creative approach may be more effective. Perhaps more information is required by one or both parties, or perhaps an unbiased opinion by a neutral expert is needed.
One thing that is crucial to achieve optimum mediation results is the ability to identify and isolate the real issues. It is often assumed, for example, that money will resolve a conflict. Unless the mediator is looking for the parties’ core interests – the issues behind the issue – it could be completely lost; resolution could occur, but the core issues are never resolved for one or both parties.
While an assembly-line approach to mediation can work, a creative, customized approach has a greater chance of satisfying the interests of both parties. As with anything custom, it could take additional time and effort, but should produce better results.
