Is it appropriate to advocate in mediation? This seems to be a very loaded question. The Uniform Mediation Act at bedrock is undergirded with the idea that mediators are there to facilitate a process. The claim then is that the parties are the experts at the conflict and the mediator is the expert in the process.

Whereas it might seem appropriate to keep these boundaries [- there I go again with that word -] distinct, I don’t believe that there is anything near the separation that happens in a mediation even for those mediators – apparently the majority – who place themselves in the facilitative camp.

If so, then there ought not be much problem in a situation where the parties are from different cultural backgrounds. But, in such a case the best thing a mediator might do is to be able to intellectually internalize how a party indicates the rationale for an action.

An example of this might be when a Chinese and a WASP-American neighbor who haven’t met need to work out an issue with a propensity for conflict. The WASP might decide to hire an attorney and go straight for the throat. The fact that they refrain might be construed as a matter of restraint.

The Chinese person may disregarding custom in China of finding an intermediary, seek instead to make a direct approach. But, Chinese culture is such that it is completely improper to go to a neighbor’s house for the first time empty handed.’

For the WASP, this would be akin to going to a small dinner party without bringing a bottle of wine. Or perhaps more clearly identifying norms, the inappropriateness of allowing your child to accept an invitation to a birthday party and not bring a gift along for his or her friend.

Now in a facilitative mediation, how is the single act of perhaps giving flowers going to be construed? With a facilitative approach will the question be vetted? It may be that the parties stumble onto the fact that this action was the instant which served as the “continental divide” whereby they rolled to completely different positions … .

But as it seems rather trivial and both parties may be working based on the assumption that the other recognizes the signal the same way … i.e. the Chinese a sign of obligatory courtesy v. to the WASP a sign of contrition which is deemed a signal of acknowledgment of mistake … it is entirely possible that this one act was the impetus for all future personal discord.

Now, an evaluative mediator who actually knows of this cultural schism might be able to see it and raise it and in doing so allow the parties to recognize that whereas they don’t interpret actions in the same way, there is a difference between intention and the action itself. 

Interestingly, law is very clear about this difference. Tort law (i.e. wrongs including negligence) identifies this difference but also includes other factors such as causation and actual damage. For pure thought on the subject, its best to turn to criminal law.

A crime does not exist unless there is both the criminal act as well as the criminal intention. Helping parties to evaluate whether their perception of the other parties intentionality seems to be a very important part of mediation. 

For mediators and for that matter anyone else involved in a conflict, I would recommend them to take a look at the Ted Talk by William Ury [co-author of Getting to Yes] who indicates that the mediators job is to help the parties to step back and in doing so get a fuller sense of the conflict by looking at what Ury calls the “third side.” [1]

I’ve used two analogies, that of two sides to every coin and two sides to every fence to explain the concept that we are both looking at a single coin or a single fence. This is the frame of reference I come in when I “evaluate” a conflict.

Merely, facilitating the crossing back and forth over the line between side one and side two seems inadequate until one is able to get to the point that both parties are able to evaluate the totality of the situation. Why are mediators seemingly afraid to recognize that they are taking on this challenge?   

[1] Take a look at William Ury’s TED talk [HERE].