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  • by Marie Walker

Mistakes (May) Have Been Made

Malpractice aside, no mediator in her right mind would ever admit to making a mistake. Nor shall I.

Still, there have been occasions when I wished for a time-machine to take me back to a moment nanoseconds before a fatal error, in hopes of preventing it. One such fatal error was the time I cleared my throat at precisely the wrong instant in a domestic mediation, thereby blowing everything up.

Ahem. defines it as “an utterance similar to clearing one’s throat, used to attract attention, [to] express doubt, or [as] a mild warning.”

My little “ahem,” throat-clearing though it was, triggered the man in my mediation to storm out during his opening statement. Would that I were so clever, to concomitantly have the justifiable alibi of squelching a cough, when I truly intended derision and disdain. . . .

The Logic of It All

What happened? From the man’s view:

All A is B. All “ahem”s indicate disdain.

A. Ahem.

Therefore, B. Therefore, I disdained the man.

Perfectly logical, yet perfectly incorrect, possibly due to a disagreement in premises. To me:

Some A is B. Some “ahem”s indicate disdain.

Some A is C. Some “ahem”s indicate a cough.

Therefore, nothing. More facts are needed to make any deductions.

We are left merely with, “Some A is B,” and “Some A is C.” There is no guarantee that any further conclusion would be logical. Or true. Lacking additional facts, one may only reach a testable hypothesis via inductive reasoning.

In turn, the hypothesis must still be tested, by collecting evidence and facts, before concluding it to be true. If there is insufficient time to test a hypothesis, then . . .

Emotions Happen

Emotions are rapid information-processing systems that help us act with minimal thinking (Tooby & Cosmides, 2008). Problems associated with birth, battle, death, and seduction have occurred throughout evolutionary history and emotions evolved to aid humans in adapting to those problems rapidly and with minimal conscious cognitive intervention. If we did not have emotions, we could not make rapid decisions concerning whether to attack, defend, flee, care for others, reject food, or approach something useful, all of which were functionally adaptive in our evolutionary history and helped us to survive. For instance, drinking spoiled milk or eating rotten eggs has negative consequences for our welfare. The emotion of disgust, however, helps us immediately take action by not ingesting them in the first place or by vomiting them out. This response is adaptive because it aids, ultimately, in our survival and allows us to act immediately without much thinking. In some instances, taking the time to sit and rationally think about what to do, calculating cost–benefit ratios in one’s mind, is a luxury that might cost one one’s life. Emotions evolved so that we can act without that depth of thinking.

The man’s primitive-reptile-safety-assuring-emotional brain rightly informed him that he could be at risk in the mediation. Rather than thinking, his emotion-based perceptions wrongly informed him that my “ahem” signaled disdain. His danger-meter amped up, he had only two choices: fight or flight. He did a little of each.

And Then What?

Well, there are several options, some of which are more thoughtful and less emotionally reactive than others. Blowing my own cork ranks as one of the less thoughtful (or helpful) responses.

Understanding that high conflict people are more likely to blow when they feel defensive helps maintain a mediator’s objectivity.2 A mediator may not be responsible for a Party’s original defensiveness. Perhaps the Party had a bad day, a bad childhood, or even a bad personality.

But a mediator is responsible for maintaining safety and control of the mediation process. The mediator may:

  1. Reduce the Party’s Perceptions of Danger. If I could have unfrozen myself as the deer-in-the headlights, I could have explained that I was trying to squelch a cough, and reassure my stance as a non-biased facilitator.

  2. Set Limits on Aggressively Defensive Behavior. As the man was stomping out, his wife explained that this was his “normal” behavior. It had crossed my mind to chase after the man. But when I learned that this is what he does, I decided to honor the limit he had set for himself on his aggressive defensiveness.

  3. Re-frame and Avoid Giving Negative Feedback. Had the man stayed, I could have explained my intention, as well as empathizing with him. “I can see how easy it would be to take my ‘ahem’ as a sign of judgment. That’s the very definition of ‘ahem’! If you don’t mind, I’m going to get a cough drop so I don’t ‘ahem’ again.” Thank you for the reminder of how important it is to explain one’s intentions in mediation.”

  4. Go to Caucus. Had the man stayed. Address his distress in private, so he felt safe. Hear from his wife in private, so she felt safe.

Was It a Fail?

Let me reframe the question. Several times.

Did the Parties divorce? Indubitably so.

Did they reach a Settlement Agreement at mediation? Indubitably not.

Were the Parties able to redefine their relationship as unmarried co-parents? Not likely.

Is a mediator ethically or practically obligated to attain an agreement at all costs? No.

Did the man get what he wanted by walking out of the mediation? Yes.

Did the woman get what she wanted? Likely so.

Did I, as a mediator, learn from the experience? Absolutely.

How could that be construed as a failure? Or even a mistake?


About the Author

Marie Walker is a mediator and family law attorney in Traverse City, Michigan. She is a Past President of the Grand Traverse-Leelanau-Antrim (GTLA) Bar Association, as well as a Past President of the GTLA Bar Women Lawyer’s Association. Along with being a member of the Michigan State Bar Association’s ADR Section, she is a member of the 13th Circuit ADR Committee. She is a regular mediator and training coach for Conflict Resolution Services of Traverse City.

viewed 01/02/2017.

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