Courtesy of Tim Hedeen, we have a suggested new mediator orientation posted on the Georgia ADR Blog.  This mediator, shall we say, is a little more domineering.  I would take this suggestion with a bit of advance April Fool’s Day humor but I am sure that Tim would be happy to explain it in person next month at the ABA Section on Dispute Resolution Conference….

Guest Contributor Timothy Hedeen, Ph.D.

Two decades of mediation research and practice have revealed to me a few fundamental paradoxes, but none has so gripped my attention as mediator pressure. In typical guest-blogger fashion, I’d like to share how I’ve arrived at my latest solution to this paradox, the creation of a new mediator role, “The Mediatrix.”

While convening sessions through a district attorney’s office some fifteen years ago, I observed disputants’ strong interest in not leaving mediation without an agreement. This led me to study the role of coercion in referrals to mediation, which in turn exposed me to the literature on settlement pressure. I pulled together these strands in a 2005 article subtitled, “Some Mediations are Voluntary, But Some are More Voluntary than Others.”

At a conference presentation on the topic, a colleague recalled a mediation in which an insurance adjuster refrained from exercising his full settlement authority, leading to impasse. When pressed by his attorney afterward to explain why he hadn’t put the money on the table, he answered, “Because [the mediator] didn’t beat it out of me.” That the adjuster desired such mediator pressure led me to title this dynamic as “party-as-piñata”. It’s also reminiscent of Josh Stulberg’s 1987 list of mediator functions, which includes ‘scapegoat’.

And since moving to Georgia a decade ago, I’ve long enjoyed the nuances of Appendix C, with its guidance regarding self-determination: “At some point, persistence becomes coercion.” The Wilson v Wilson case brought into focus the issue of long hours in mediation, and the possible effect of wearing parties down toward settlement. Nationally, an ABA task force report on mediation didn’t quite clarify the matter: “Follow-through is patience and persistence but not stubbornness.” That same report does, however, emphasize that mediation participants often seek mediators who are “prepared to stay late—and as long as it takes to finish the mediation.”

So what gives? How might mediators know when they’ve delivered the pressure a party desires? How might a party indicate that they’ve reached their limit?

To locate a parallel model of desired-pressure-up-to-a-point, I turned to—where else?—the Internet. There I found some very helpful service-delivery models on offer, including the dominatrix, which stimulated my thinking to new heights. And thus I present a new mediator role, The Mediatrix.

Readers are invited to submit their suggestions of “safety words.”