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Revelation in Mediation

June 20, 2011

Sometime people come to a mediation hoping beyond hope for an outcome that is unrealistic at best and improbable or impossible at worst.  In some “wrongful foreclosure” lawsuits, for example, there is ample justification for bringing the action; in others, however, the borrowers/homeowners may have deluded themselves into thinking that they can never lose their homes or that their lost homes somehow will be restored to them, sometimes magically if there is no other way.

One such mediation took place last week.  The details must remain private, but the task of the mediator there was to help the parties to understand that ownership of their home was now almost certainly beyond their reach, and that they must readjust their expectations to the reality of the situation.  In other words, in as a kind and gentle way as possible the mediator had to help them “burst their bubble” or “dash their dreams.”

Mediators often talk about being “the agent of reality” for unrealistic parties.  While sometimes both necessary and appropriate, this is not an easy task.  In some of these cases, the lawyers have already advised their clients of the probable outcome of their case, and the individuals have ignored that input.  They resist, sometimes even blame the lawyers (instead of acknowledging their own responsibility for some part of their plight), and they refuse to believe that their cause may fail.

If the mediator becomes aware of the disconnect between the party’s expectations and his or her lawyer’s advice, the mediator can help both in this situation.  As a Neutral, the mediator, if skillful, can help the party to understand the bad news maybe already described by the attorney, through a process of self-revelation which leads to the party’s understanding and acceptance of an otherwise unpalatable settlement proposal from the other side.

In last week’s mediation, the process of revelation was accomplished in an unusual way.  In a private caucus, at a point of considerable resistance, the mediator asked the angry party to switch roles with him.  Perhaps unconsciously knowing that this was a way to give herself the voice of reason she could not otherwise vocalize, the angry litigant agreed.  Switching roles the homeowner-turned-mediator, still angry, asked the mediator-turned-homeowner to talk about the situation.  The mediator-turned-homeowner re-framed the situation in the first person “I” voice and, after a short soliloquy recounting the situation, concluded in words like these: “I understand that I did my best under the circumstances, that sometimes bad things happen to good people, and that I need to get past the situation and move on.”  In this role-reversal, many other things were said which need to remain private here.

Ultimately, and with new understanding and acceptance following this self-revelation, the former homeowner was able to allow settlement to occur, which it did.  The attorney, too, was satisfied and voiced praise at the mediator’s eloquence and compassion in a most difficult situation.

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From → Mediation

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