“My dad told me that if someone needs you, they call you, and if they need you, you go.” Most experienced mediators have said something similar to this quote from Jerry Roscoe. He is the mediator that was called in at the eleventh hour to the Dominion/Fox court case. If you haven’t been paying attention, the case settled at the very last minute, as attorneys were loading up their court slide decks, and the jury was ready to be seated.
I don’t know Jerry Roscoe, who has international wartime mediation experience, and I don’t pretend to know the details of what was reported in the press as a 36-hour long mediation in such a high-stakes, public-eye case. What I do know is that there are plenty of mediators who share Roscoe’s sentiment about showing up to provide mediation when you are needed.
Days after the Roscoe-mediated settlement, I was sitting with a dozen international and US community mediators. “If we didn’t get this done,” said one mediator who had been working on a land-use case that crossed borders, nationalities, cultures, and languages, “it would surely have been ten years before we could get going again, if ever.” The mediator consulted with the gathered crew, who were invited to this three-day workshop led by Susan Podziba to learn from her experience about mediation design. The conference participant continued, “I told them to take the draft document back and work on it. If they had submitted it [as it was], the mediation would have come to a quick end.”
Here on Martha’s Vineyard, in a mediation case this week, two parties met to discuss the disposition of their co-owned house. The mediators kindly informed them that the process could not be finalized without a self-determined decision. The mediation session ended without an agreement about the house, and the parties walked away, frustrated, to consider their options. The mediators asked a more experienced mediator, “Would you come to the next session to see if you can help them get unstuck? Maybe you can help them to see a new way forward.”
Timing
In each of these cases, mediation moves are delicately chosen with attention to timing. Mr. Roscoe, hiding in the back of a tour bus with his coat over his head to preserve confidentiality, knew the court case was about to begin, having been granted a one-day delay. Coming in at this late stage requires a mediator to be a quick study, distilling the case down to its essence. Finding emerging agreements, absorbing the ultimate goals of each side, keeping parties apart, and putting them together when the timing is right are all matters of skill, creativity, and luck.
For the mediator attending the conference, who was describing the land-use case, timing had been a stressor throughout––bringing together 40 parties is not simple. Intervening at a pivotal moment to send one party back to rework a crucial document is an important decision that a mediator can make. This mediator discerned that all the careful planning and building toward a joint agreement could be decimated by a proposal that was not aligned with the goals of those involved. “You made a crucial intervention at a crucial time––sounds like the right move,” commented a workshop participant as the group collaborated on answering nagging questions with each other. “I admire that move. I hope I would have thought to do that, too.”
In the case of the home ownership decision, bringing in a new voice is also a matter of timing. Having met over the course of many months and now finding that the mediation, despite many strategic moves, continued to spin around the same circle, the mediators decided to bring in a new voice. Bringing in an outside entity can throw off a carefully balanced process or, alternatively, help things to come together. We shall see if this new ingredient can help to finish this particular mediation recipe. It is a matter of timing.
Design
At the conference I spent three glorious days learning about complex mediation case design–– and I learned a lot! The group was an experienced crew who had strong resumes filled with messy cases. From big issues impacting entire countries to those of local communities mired in the mud of conflict, we learned from our leader, Susan, and from each other.
“No one but us likes talking about process,” was a sentiment echoed throughout our time together. This rang true for me as I thought back through all the situations when I have tried to chat with folks about how to structure meetings, courses, mediations, and other gatherings of humans. We ended the sessions with each of us doing a presentation standing alongside our charts decorated with colored stickies, arrows, and stick figures. I looked around the room and thought we looked like overgrown middle school science fair presenters. Nothing immature, though, about the amazing strategic and flexible designs for conflict resolution processes. We considered each other’s process maps, following the timeline and flow to see if the steps made sense, to suggest what might be missing, and to think together about new creative ideas.
Susan Podziba has written a book, Civic Fusion, and has a wealth of knowledge about process design theory. She advocates for a process approach described in her book and gave us further insight as she talked through each case. It is said that mediation is a solitary profession, with mediators often working alone. I’ve found myself ruminating alone about various decisions I’ve made during mediations. What a gift to be with others who share my profession and who want to talk through cases and strategies. Generous spirits, these mediators; we hugged each other upon leaving. “Good luck with all your work.” “Call if I can be of help!”
Saying Yes
In another case from a while back, a house closing was the following morning, and the about-to- be-previous owner was leaving on a late boat after the closing. And––a family member had still not vacated the house. “We are calling you at the eleventh hour. We want to mediate. Can you help us today?” came the call on a Monday morning. I happened to be answering the phone. Thinking about what I had on my agenda for the day, I also considered what saying no could mean. “Sure, I’m a mediator and I would be happy to help today” was my answer.
For the individual mediator, each case is an opportunity to say yes or no. For me, after many decades within or adjacent to the mediation profession, it’s pretty remarkable how often mediators say yes. Jerry Roscoe was on a river cruise on the Danube when he got the call to mediate the Dominion/Fox court case. Those who don’t do this work might think, C’mon Jerry, enjoy the cruise. Revel in seeing the countries in peacetime that were in military conflict when you were there as mediator. Take a break, Jerry. I was not surprised to hear about Roscoe’s yes to the case. It’s in the blood. We signed up to help bring folks together, to find a way, to listen for the way forward.
Saying yes doesn’t make one famous or celebrated. The dozen mediators I worked with last week are not household names. The late-night segments where they ask folks in Times Square what the name of the vice president or mayor is––finding blank faces––would also find blank faces if you posed the names of Jerry Roscoe or Susan Podziba. Celebrity is not the goal for any mediator I know. In fact, being well known can be a real detriment as we seek to take the neutral spot in helping others to resolve their conflicts.
I had to hunt to find an image of Jerry Roscoe, Mediator, sorting through people with the same name—a guitarist, golfer, grandfather. When I researched the case and mediator, I could easily find many pictures of the lawyers, Fox News figures, the judge, and the façade of the courthouse. I finally found a photo on mediate.com of the relatively anonymous JAMs mediator who found himself in the middle of a huge legal and commercial dispute, said yes, had a good sense of timing and designed a process that worked. What mediators do every day.
Fox/Dominion mediator Jerry Roscoe here
Susan Podziba’s website here