The Dilemma of Choosing and the Good Masters

Abridged version in English of the original

As professionals, we need to understand the psychological effect that choices have on people in order to understand also the usual reluctances to settle that can be found in the final phases of the mediation process. We often wonder: What happens to those in mediation when, after having gone through the hard process of exposing their experiences, revisiting their conflicts, coming closer as human beings and understanding each other, getting solutions that are really valid and in many occasions even better than those that could have been obtained in a lawsuit, what happens, I insist, when last minute reluctances emerge that challenge the final settlement? The mediator internally struggles between the fear of his/her job being useless, the uneasiness towards the person that doubts, thus questioning the possibility of a settlement, the unrest because the time to reach an agreement passes, the wish to exert a certain pressure so that the reluctant party gives away doubts, and the principles of mediation that seem to tell us that all these emotions are not adequate for a good mediator.

Reading the classical authors of mediation we can find some answers on how to respond when facing these situations. Of course, the starting point is not let ourselves to be carried away by what we emotionally feel as mediators: getting on a tree, Ury (1997) says, who also talks about the need to “build golden bridges”, i.e., facilitate the return to the settlement when the people in a mediation process feel it is close and therefore they need to go back to their initial positions as a result of the doubts that might emerge when the settlement is about to occur. Transformative mediation practitioners, more aware of the emotional need of those in mediation, also remind us that reluctances can be healthy and appropriate as they hide aspects related to empowering the parties, and they pinpoint that the final decision not to reach an agreement is a success of the mediation provided that it is the party concerned the one that freely decides not to accept a settlement (Folger, 2008). Of course, the settlement reached by the parties in mediation can often not be the best option. No matter how hard we try to claim that mediation is always the best space and possibility, the personal attitudes of a more closed, “stronger”, surer and more determined party not to give up can put the other party in a position to accept a solution that, being honest, is perhaps not the best option and that perhaps in another kind of process –for instance a trial–would never be proposed. In these cases we clearly understand the refusal of the second party to give in to an appropriate settlement and we understand that as mediators we should focus on helping the party that is apparently strong or imposing to overcome this attitude.

However, we must ask ourselves the following question: why do people frequently show reluctance in the almost definitive moments prior to the settlement?

Negotiation in a mediation process acts, from a psychological point of view, in a very similar way to two other situations: games and, even more, shopping.

About the negotiation process as a game, a great deal of papers have been written since the classical work by Von Neumann and Morgenstern (1944), which has given cause for, among other ideas, the famous «Prisoner’s Dilemma» (Poundstone, 1995). When experiencing a negotiation in similar terms to those we establish in games, those in a mediation process, encouraged by the wish to win, face the doubt whether to collaborate and get something good for all, or compete and win, by doing so, more for themselves, away from the others. The economic wish to achieve something, to obtain something beneficial (when I say economic I am not referring only to monetary things but also to the feeling of “getting something”, earning something, “take advantage” of something which is motivating in and of itself) calls for our more individualistic part. If I think of myself, the most relevant result is the one in which I win more or at least I loose less. In this regard, André Gide makes his main character in «The Immoralist» (1902/1988, p. 122), his own «himself»: «How happy is Ménalque, beause he has nothing! I suffer because I want to preserve»; this reminds us about one of the lessons attributed to Buddha: «It is neither life nor wealth or power what enslaves men, but rather the attachment to life, wealth and power».

However, it is an economic principle that, like Lieberman questions in his work «Social. Why our brains are wired to connect» (2013), is not the only impulse at all that leads the human being’s behavior. It is indeed a motivator, but human beings, bound to be social, will be able to overcome their own selfishness and self-absorbed vision to accept a settlement that is valid for both parties even if it is economically less interesting. The studies presented in Lieberman’s paper about the aforementioned «Prisoner’s Dilemma» prove this: we opt for a solution that benefits both parties half way instead of an option that benefits me more but that makes me be against you. We are bound to live in a society, and we need the acknowledgment of the others, struggling between our autonomy and our more individualistic interests, and our social dependence: being able (to win) allows us to feel independent from the others; social recognition allows us to feel integrated. As Stephen A. Mitchell states «A child cannot function without relationships, without bonds to other people, without real interactions that make him be connected and integrated. Being a human means to be related to the others and to belong to a matrix of relationships». (Mitchell, 1993).

Being based on the natural social trend of the need to collaborate with human beings, making evident the allowances made by the other person, and calling on empathy to do so, often helps to overcome this moment, this wish to defeat the others above all, which is in many occasions hidden by:

  1. The wish to be right;
  2. The moralizing momentum to judge the other’s behaviors – we are always stricter with the other people intentions and behaviors than with our own–;
  3. And the wish to get a gain over the others, regardless of the real amount to be obtained.

The first wish, the wish to be right, is for many an element that is always at stake in mediation. Many people only ask for that: someone who admits that they are right and they get frustrated at the beginning of the process when the mediator states that his role is not to judge this. They must turn to the other one, their opponent, so that he recognizes they are, at least, «partly right». Again, Gide reminds us about this in «The Immoralist» (1902/1988, p. 116), through the Oscar Wilde-like cynical character of Ménalque, that when facing insults, «it is necessary to let the others be right, as this comfort them when they have nothing else». Less cynically, we as mediators need to understand the need of those in mediation to feel at any moment that they are right at least about something. This is human and the starting point is the need to be acknowledged and be strongly self-esteemed as we feel that «we are not insane, and that some of what we say is partly right», and it is in many occasions an utter need of those in mediation that cling to their positions when they face dissatisfaction. It is amazing to see – surely all mediators have experienced this often – the effect of recognition on those in mediation who overcome their initial entrenchment as soon as they feel they got some of the addictive doses of being right about something, even if partially. And at the same time, in a very difficult joggle in mediation, being able to convey to them that there is no Single Truth but many, and that, in any case, it is not the scope of the mediation to clarify/state who is Right but rather to address conflict in a positive way.

With regards to the moralizing momentum, I am going to refer again to Ménalque from «The Immoralist» and his usual cynicism when he bluntly states: «I can’t expect to see my virtues in the others. It is already gratifying if I find my vices among them» (1988, pp. 117). Obviously, our moral quality is built by comparison with that of the others, and nothing is more satisfying for our punisher superego than pinpointing the other’s «failures», which shows that we are not that imperfect. Our self-esteem is saved by the harsh judgment we cast on the others. But apart from giving the superego this pleasure, such a behavior does nothing but reinforcing my confrontation with the others. And here, the Christian sayings that go beyond the religious aspect and are strongly rooted in the Western culture, «do not judge and you will not be judged» or «let him who is without sin cast the first stone» call for a widespread feeling of respect vis-à-vis the others, and this is extremely important for our social relationships and living together. For this reason we need to understand, as claimed by Sara Cobb’s Narrative School (Munuera, 2007), that it is the created stories that unduly maintain this judgmental attitude towards the others; stories of «good guys and bad guys» where we distribute roles to our liking: I keep the good guy role to me and I give you the bad guy role. There is a need to give this bad guy role to someone else, and, of course, I’d better give this role to the other persons instead of attributing it to me. And then, I need to rationalize and look for evidences of our theory–the theory of the other one being very bad–, and to firmly believe in it ends up distorting our view. The main character in «The Immoralist» perfectly reflects this idea: «Our looking develops and exaggerates in each one the focus on which it centers; thus, we make it become what we want it to be». A judging look reinforces the conflict and a closed narrative, the film we have created with «good and bad» guys. Understanding that this is not the film we are going to watch in mediation, with no «good and bad» characters, no «pursuer and victims», and no mediator as a «savior» or as someone who admits we are right or as someone who judges about how bad the others are, will help to give away these judgmental narratives.

With regards to the third wish, the wish to get profit higher than the other person’s profit is well reflected on the studies gathered by Lieberman (2013). In them the idea is presented that satisfaction is often higher not than the amount earned (the profit we referred to before), but in comparison to what the other person got, and if what the other person gets is more than what I get there is a feeling of injustice regardless of the settlement being fair or the result of what is given to me being a good thing. That is, not only what I get is important but also the comparison to what you get. As Lieberman states, neither too high nor too low; what we need is a certain balance.

However, we need to take into account that even if wishing is the initial driver of those in mediation, when facing a settlement not only wishing plays a role. This is when the image of shopping comes in; how many times when pushed by our wish we line up at the long queue at a store’s register and wonder: «Do I really need this?», «Am I not expending too much?», «Does this worth the price I am going to pay?» Like Gide affirms in «Les Nourritures terrestres» (1897; cited in 1988, p. 26), «Picking something did not seem to me at all choosing but rather rejecting what I had not chosen». Fear to loose emerges right before reaching a settlement, challenging even the agreement. For choosing, indeed, implies to relinquish other options. The other possibilities for a solution come to our mind and make us doubt about how beneficial the settlement can be. Our great life choices are, in fact, clearly affected by the no principle: the problem to choose a profession is not much what I want to become but rather what I am willing not to be, what other professions I leave behind. If I opt to become a psychologist or a mediator, what about the novelist or the journalist I could have been? Choosing a partner, again, faces me not to the doubt whether the person I choose is wonderful, he/she indeed is, but to the doubt whether there could be someone else even more wonderful I could leave behind with my choice or if I am ready to accept the exclusivity usually associated to choosing a person and not the other ones. In his masterful piece «Annie Hall» (Joffe, Rollins (Prod.) and Allen (Dir.), 1977), Woody Allen depicts two neighbors, one of them is single and lives a crazy life, and the other one is married with a wished family, and they somehow look at each other enviously not because what they have is worse than what the other one has but because they would like to have what the other one has. Choosing Paris as a holiday destination is not a problem at all, Paris is always a right decision per se, but the places we will not visit this summer precisely because we chose Paris become a problem. What about the car or the house to buy, which places us before the problem of the house or car we chose not being wonderful, but of the other house or car that might be out there that are even better. It is the human greed and the fear to miss opportunities what make us face the choice dilemma. I am not saying this out of judgment, but of the acceptance of what it is and what we have to deal with in mediation. Again, as Ménalque from «The Immoralist» reminds us: «Of the thousand life styles that exist, one must be chosen. Covet the other people’s joy is madness; we wouldn’t know how to use it. We don’t want full happiness but tailor-made». In any case, and back to Buddha, «He who clings to wealth will be better off if he relinquish it than if he allows it to become poison for his heart. But he who does not cling to wealth and use it to do good deeds, becomes a blessing for his neighbors». This is the change of perspective that often those in mediation–and ourselves in our conflicts and daily struggles–should bear in mind. When we are overwhelmed by a conflict we cannot ask them to overcome the anguish generated by their loss. The task of the mediator is to help them revisit and put on the table their personal values, often forgotten during the conflict, in order to can help them to find the way back to what they want for their life, following the style of what Hayes, the author of the Acceptance and Commitment Therapy or ACT (Hayes, Strosahl and Wilson, 2014) proposes, what really makes them happy and satisfied with themselves. A more opened look to oneself and to others, a less self-absorbed as the transformative mediators would say, more consistent with what one wants to be and with what really makes one happy. All in all, it is not an easy task but it is perhaps a way for us to explore further about mediation.

All the ideas I present here are not judgments but challenges; it is to be open to consider things rather than making unquestionable affirmations, as, again, Gide puts it, «I am a being of dialogue, and not at all of affirmation» (1902/1988, p. 21).

But let’s leave aside for a moment these three great masters of philosophy, of psychological narrative and of cinema, and let’s turn to the great masters of mediation in the Spanish language.

In this issue of «Revista de Mediación» we will be able to enjoy their more personal lessons, always bold, always step forward, so that those who follow and respect them can enjoy with them.

The first article was written for the Spain-based Italian-Argentinean Franco Conforti, who publishes his first paper as a Doctor. We all know the efforts and savoir-faire of Conforti through «Acuerdo Justo». In this article we present here, not only does he introduce us to the main contributions of the facilitation process and appreciative dialogue, but go beyond to explore his own experience and deep knowledge of the possibilities to intervene in organizations, based on these proposals.

Francisco Díez needs no introduction to the world of mediation. His book written with Gachi Tapia about mediation tools (Díez and Tapia, 2006) is a basic book all mediators must have on their night table, and his negotiation workshops are well-known. His experience at the Carter Center, among others, makes him one of the most respected mediators at an international level. Díez shares with us all his expertise in an article that explores the possibilities of the space in mediation, and he masterly refers to the three «Cs», Comfort, Communication and Connection, the keys to an adequate intervention, and he also shares actual examples of his experience that show how important the three «Cs» are. These examples are so enriching that we could add a fourth C that guides Díez actions and that should be present in all mediation intervention, C for Creativity.

The Chilean Gregorio Billikopf shares his high analysis and work skills between the University of California and the University of Chile. The author of the Individual Guided Mediation (IGM) and the Negotiated Performance Assessment (NPA) models explores in «Revista de Mediación» some of his most attractive and daring contributions, as the importance of preliminary meetings or non directiveness during the joint sessions of mediation.

Another Argentinean master, Antonio Tula, shares in «Revista de Mediación» his reflections on how to intervene with multi-issue families. Tula, whose expertise is always hand in hand with his intellectual curiosity and the effort to dignify mediation has contributed with precious pieces in the well-known Redes Alternativas, where he himself appears in several mediation sessions, giving us so many practical lessons on how to become a good mediator. This time, he presents the concept of second class mediation of which a lot will be said in the future.

And the last article comes from our sister nation, Portugal. In this paper, Daniela Pacheco explains the state and the evolution of mediation in Portugal; it is a necessary approach to a reality we all need to know in order to learn from its achievements and failures; it is a very interesting analysis that Pacheco has carried out for all of us.

We need to thank all these authors, these masters, for the effort we requested from them, and we need to say that they have all responded promptly and showing the most positive attitude and willingness. It is perhaps this openness, willingness and availability what makes them good mediators, and, no doubt, masters. «Revista de Mediación» has always bet on those who want to go in depth and beyond our field of action in mediation, and this issue is going precisely in this direction, «going beyond» should always be if not as basic principle of mediation at least a guide or compass leading our intervention.

Lastly, I wanted to share with you that for some months now our Editorial Board has a new member, one of our cherished masters, Ignacio Bolaños Cartujo; we thank him for having joined us and for his support to «Revista de Mediación»; also, we say good bye to our old friends of AMM.

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