Electronic copy available at: http://ssrn.com/abstract=2140220

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Shifting the Focus from Mediating the Problem to

Mediating the Moment – Using Intuition as a Guide

Greg Rooney and Margaret Ross

Knowledge, Thinking and Being in a State of Reverie

It is our ability to think that makes us a mediator, lawyer or social scientist not our

acquired knowledge of the subject or field. Although knowledge acquisition is an

important first step for the novice professional it does not make a practitioner.

Professional practice involves engaging in a real encounter with other human beings

in the here and now of the professional setting. How you think moment to moment

is the driver of that engagement. The application of abstract knowledge is just a by-

product.

The professional encounter has to be real and fresh and unique to each moment. In

essence mediation, the law and the social sciences have to be continually created

afresh by the practitioner and remain fresh during each moment of the professional

encounter.

The technical knowledge of a particular profession or field is static knowledge

isolated from the here and now of the personal experience. Therefore one has to

continually overcome that knowledge so as to be able to engage in the here and now

of the moment. Thomas Ogden refers to this process within the context of

psychoanalytic psychotherapy. He states:

“... Analytic learning is biphasic. First, we learn analytic procedures, for

example, how to conceive of, create and maintain the analytic frame; how to talk

with the patient about what we sense to be the leading edge of the patient’s

anxiety in transference; how to make analytic use of our reverie experience and

other manifestations of the countertransference. Then, we try to learn how to

overcome what we have learned in order to be free to create psychoanalysis anew

with each patient. These ‘phases’ are in one sense sequential in that we have to

know something before we can forget/overcome it. But, in another sense,

particularly after we have completed formal analytic training, we are

continually in the process of learning to overcome what we have learned.”.

Part of the driving force behind the acquisition of knowledge is the desire to want to

understand what is happening and why. This, at first glance, appears a natural

consequence of study and inquiry into a profession or field. Bion (1981) warns

against developing an attachment to the need to understand as it can inhibit the

professional being attentive and totally present in the here and now of the moment.

Electronic copy available at: http://ssrn.com/abstract=2140220

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He suggests that we need to experience something before we can develop a

knowing. Experience, he says, precedes thought. Because the experience is

permeated with uncertainty the need to understand what is going on and the urge to

try and clear up that uncertainty only impedes the connection to the unfolding

experience. He exhorts a quality of the mind that is openly receptive to the unknown

(Bion 1981).

Overcoming our knowledge is only the first step. We also have to overcome our

thinking drawn from our own personal biases. These biases are a by-product of our

rational mind’s attempt to make sense of our world based on our life experiences to

date. They include our emotional responses drawn from our memories and desires

(Bion 1981).

The problem with our memories and desires is that they can block our receptivity to

what is coming and what is at present not known These biases need to be isolated

from our mental processes in order for the professional truly to ‘experience the

experience’ of the encounter.

Experiencing the Experience

It is experiencing an experience that is at the heart of the mediation process. The

structured mediation encounter is designed to offer a safe place for parties to

experience something that hopefully will lead to a movement forward.

It is sometimes assumed that there is an existing truth that can be sought out and

discovered by the mediator. Bion (1970) asserts that there is no existing truth to be

revealed but rather a moving toward a yet unrealised truth. There is a subtle but

important difference between these two modes of thinking. This is because the

experience comes first followed by the associated thought. If we reverse that order

and direct our thoughts towards seeking out an answer before the experience then

that mental approach will impede or reverse understanding as it unfolds in each

moment.

An example of allowing our thought to precede the experience is the formulation of

a pre-mediation hypothesis. This is an example of a mental attitude based on a

presumption that there is an existing answer or truth which the mediator only has to

uncover. The problem with this mental attitude is that the moment we fix our focus

on our hypothesis we automatically start a selection process accepting some points

and discarding others. As Freud states this is precisely must not be done. He

advocates maintaining and evenly suspended attention, not fixing on any one point.

He stated that if we start following our expectations (hypothesis ) we are in danger

of never finding out anything but what we already know (Freud).

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The aim is to move the mental focus away from seeking ‘the truth’ or ‘the right

answer’ and onto allowing the unknown to unfold. The latter is a far more

challenging approach but it does open the door for a real connection and experience

to arise between the mediator and the parties.

It is suggested that we sit with the mystery and uncertainty of the forthcoming

encounter. That we allow ourselves to be surprised by whatever eventuates. In that

way we not only expand our own mental awareness but will also model for the

parties openness of thinking. That openness then forms part of the safe place that

the mediation session provides for people who are confused and in conflict.

Zero Thinking

So what mental state must the mediator possess and model for the parties so that

everyone, including the mediator, can learn from the mediation experience?

Wilfred Bion talks about a state of mind that is openly receptive to the unknown. He

refers to it as a state of reverie which he has described as a form of mental void, a

formless infinite and the perfect blank. It has also been called zero thinking (Bion

1970). It is a space in which the practitioner is unmoved by their own memories and

desires and where there is an overall attentiveness to the present moment.

Bion’s concept of attention is comparable to mindfulness, a major factor in Buddhist

meditation. The common dominator between Bion’s view and the Buddhist view of

mental development is that in both thought systems mental growth is synonymous

with learning from experience (Pelled).

The Professional Prism

The thing that distinguishes a mediator, a lawyer and a social scientist is the prism

through which they think. This prism is a construct of the substantive knowledge

and practical training in the respective fields of mediation, the law and the social

sciences. These prisms frame the here and now of the relevant professional

encounter.

However some lawyers and social scientists tend to view mediation through a legal

or therapy prism. This is often a result of a fear of letting go of some of the comfort

they have developed with their core profession. John Haynes sees this as a problem

and advocates using only a mediation prism (Haynes).

These professional prisms are overlaid with our own historical biases and the urge to

prepare and try and predict what is likely to happen and why. It is by overcoming

any attachment we have to these needs and biases that we can arrive in a mental

state of professional reverie that allows the practitioner to be open to the new and

the unexpected. It opens the door to fully experience the experience of the parties

and of ourselves. It is only then we can make sense of events that have just

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occurred. As Freud stated; “It must not be forgotten that the things one hears are for the

most part things whose meaning is only recognised later on” (Freud).

Expertise and knowledge

There is also a considerable body of research drawn from the Expertise Literature

that suggests that experts do not necessarily behave according to the conventions of

their field or “by the book” (Wilson). It suggests that experts are not limited by the

prevailing boundaries of current professional wisdom, knowledge and practice.

An expert has been defined as someone who is “still learning “. Much of this

research is drawn from observations of hostage negotiators, fire fighters and others

who have to deal with fast moving and volatile situations. It requires flexibility and

the ability to adapt and respond to the here and now of the moment. This includes

adapting standard processes to meet the particular situation, sometimes pulling

unconventional interventions in from left field.

The ability to be able to accurately regurgitate knowledge is not sufficient of itself to

establish expertise. Expert practice requires going beyond knowledge to embracing

the art of operating in the ‘zero thinking zone’ or professional reverie. This reverie is

grounded in the here and now of the present and within the concept of time and

space that we all occupy. It connects the practising professional with the here and

now of the moment.

How we think affects how we behave as professionals and what influence we exert

on the parties, the clients or our patients. It has significant implications with respect

to issues such as ‘the use of self’ and intuition in relation to practice issues. It impacts

on the integrity and presence of the mediator, the lawyer or the social scientists. It

also challenges the illusionary concept that somehow we can be impartial and

neutral.

For mediators our thinking process defines how we practise. However one of the

major inhibitors of the ability to think occurs when there is a limited amount of time

and space. There is often pressure from the parties and their lawyers to find a quick

solution and to condense the encounter by going straight to the bottom line via a

shuttle negotiation.

The philosophy behind the facilitative mediation process is to create sufficient time

and space to allow the thinking process and professional reverie to develop firstly in

the mediator and hopefully, by induction, with the parties. An important first step is

to moving the focus away from the so-called problem and onto the parties and their

disrupted relationship.

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Creating the time and space to move the focus from the ‘Problem’ to the parties

relationship

The one thing that is common to all mediations is time. Time is therefore the thing

that mediators provide. It is the currency that mediators trade in.

How mediators structure that time defines the mediator and the mediation process

being used. Mediators can allocate that time in either a series of separate sessions or

one continuous session. They can allocate how much time they spend with the

parties and their advisers and whether it is done individually or together. They can

allocate time for pre-mediation meetings or not.

However the parties generally do not see their relationship with the mediator in the

context of time. They see it more in the context of the problem or impasse that they

want the mediator to help resolve. This can create conflict between the mediator and

the parties with respect to how the allocated time is utilised. If it is not quickly dealt

with it can lead to a disconnect between the thinking process of the mediator and the

thinking process of the parties.

The illusionary nature of ‘the problem’

It is natural for the problem to become the parties’ main focus. It is why they came to

mediation in the first place. However the problem with a total focus on ‘the

problem’ is that it can dominate everyone’s thinking. This is compounded by the

illusory nature of the problem. One party's version is not necessarily the others. This

illusion is masked by the faux agreement that ‘the problem’ is just the difference

between each party’s negotiation position.

However ‘the problem’, as presented by the parties, is made up of a number of

elements:

a. The most visible is each party’s stated position with respect to the problem. A

position is a strategic intervention. It is a negotiation strategy and is not

necessarily a final position. There is an element of illusion and subterfuge

about it.

b. Then there is what is known as the parties’ bottom-line. This is generally not

disclosed to the other party except if it is a pretend bottom-line used as a

negotiating strategy (see a. above). However the real bottom line can shift

during the mediation depending on the various influences and pressures

brought about by the negotiation. Therefore even this real bottom line has an

element of elasticity about it.

c. Underpinning the stated position and the real bottom-line are each party's

perceptions of the historical events that link their relationship. These

perceptions are affected by natural and conditioned biases, mis or non-

communication, third-party involvement and unforeseen or unanticipated

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intervening events. They form a cocktail of influences that impact on the

problem.

d. The role of the parties’ advisers also has to be factored in. These advisors

include legal representatives and third parties (or the third aunt in the

Singaporean culture)who have a vested interest in the outcome. They bring a

range of abilities and biases that have an influence on the stated position and

the bottom line.

One factor that has a significant impact on the problem is often overlooked or

dismissed. It is the relationship element that exists between the parties. It is normally

presented by the parties as a fracture in their negotiation relationship. It stems from

the fact that the parties have lost or abandoned their ability to resolve the problem

directly between themselves. This applies even if they are only involved in a single

arrangement.

As a result of this fracture a form of relationship atrophy sets in. ‘Atrophy’ meaning

a wasting away. Much like a muscle wasting away because of the lack of food, so

does the relationship.

This breakdown in the parties’ negotiation and personal relationship is often

dismissed as irrelevant to the problem. Repairing the relationship is generally

considered a lost cause and any attempt to do so is seen as an impediment to a swift

resolution of the problem. The fractured relationship is often relegated to a second

or third order issue.

Because relationships are complex and personal, when they fracture they cause

distress. It is therefore much easier and safer to direct focus away from the failed

relationship and on to inanimate concepts such as the problem, as represented by the

parties’ stated positions.

It can appear less stressful to focus on the problem. The problem has the appearance

of being static, definable and rational and, as such, controllable. It does not have all

the unpleasantness associated with relationships.

Mediating the Problem or the Relationship

Parties generally believe that resolving the problem is what the mediation is all

about, not about repairing a relationship.

It is therefore easy for mediators to fall into line with this form of thinking. After all,

the problem is what mediators are contracted to help resolve. Consequently, it can

be easier for mediators to avoid having joint sessions with all the parties in the same

room on the grounds that reconnecting the parties will only inflame the thing that

they believed caused the breakdown in the first place.

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For some mediators there is also a personal aversion to dealing with relationship

issues. Many with a traditional legal background are not used to working with these

issues and feel safer with unemotional facts and rationally stated issues. They come

from a profession that historically has not treated emotions and relationships as

relevant to their professional role.

One way to avoid relationships impacting on the mediation sessions is to keep the

parties apart. For retired judges and lawyers acting as mediators this can prove very

attractive because it is consistent with how they have operated as judges and lawyer

advocates. It can be even more attractive for those lawyers and retired judges who

have not seen the need for formal mediation training. Mediation often becomes, for

them, a form of private adjudication or a series of caucuses between the parties’

lawyers.

However, the overt problem and the underlying disrupted relationship cannot really

be separated from each other. They are both an integral part of the dispute and both

need to be addressed. A holistic approach to resolving disputes needs to include

both. They both impact on the path to a resolution and both need to be

accommodated in planning a mediation.

The Mediator as an Irritant.

Relationships are at the heart of our human existence. We build up relationships

with people to whom we are connected whether it be for social or for commercial

reasons. These relationships develop unique communication and negotiating

patterns which tend to disintegrate when conflicts and disputes remain unresolved.

It can be more comfortable for everyone to leave the relationship issues alone and

just concentrate on the problem. However this need for comfort is often a defence

against facing the unpleasantness associated with disrupted relationships.

Parties who are in conflict or dispute generally hold fast to their positions. One of the

challenges for the mediator is to loosen those positions so as to pave the way for

compromise or a new solution.

One option is to focus on the problem as defined by the parties’ stated positions and

try to elicit incremental concessions. This has been a standard way of negotiating

and is readily accepted by parties and especially by traditional lawyers. It is often

called shuttle mediation.

The alternate method is to park the stated positions and use a process of re-

establishing a constructive negotiating relationship between the parties before

seeking concessions. This method is known as the facilitative mediation model. It is

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designed to breathe life back into the parties’ relationship even if it is only a

negotiating relationship that lasts for the duration of the session.

At the heart of the facilitative mediation process is having the parties participate

fully in the joint session. This creates the opportunity to press the restart button on

their negotiation and communication relationship.

This request to work jointly and collaboratively face-to-face with reluctant parties

and their lawyers places the mediator in the role of an irritant. One of the definitions

of the word irritate is to stimulate something into action, or excite or produce an

uneasy sensation in a bodily organ. In the facilitative mediation context the mediator

is trying to irritate or stimulate the communication and negotiating patterns back

into life. It challenges the desire for comfort in both the parties and the mediator.

This paradoxically creates a form of energy which can be used to divert the parties’

attention away from their fixed positions. When used appropriately it can distract

the parties from the imagined problem sufficiently to allow them to relook at it from

a fresh perspective.

In Praise of the Joint Session

The joint session provides the opportunity for a mediator to work simultaneously on

the substantive issues and the underlying atrophied relationship. Private sessions

can be part of the mix but are used as a specific intervention in support of the joint

session.

That is not to say parties should always be in joint session. It is appropriate in some

cases that the parties should be kept apart. Each dispute has to be assessed on its

own merits based on a thorough pre-mediation assessment.

However, the joint session does provide the mediator with more options and

challenges. It can open up unexpected opportunities for all participants.

Mediating and negotiating in joint sessions require the mediator to develop an

ability to be comfortable with the uncertainty that occurs when parties are asked to

re-engage with each other. This requires the mediator to be totally present with the

parties in the here and now of each moment.

Shifting the focus from mediating the problem to mediating the moment

Returning to the theme of time, when dealing with relationships time is not

measured in hours but in moments. Each moment has its relevance and is connected

to what has just come before it and what will follow. Yet each moment is new and

stands on its own. There is uncertainty about what will happen. Mediators working

in the moment have to accept that uncertainty and be comfortable with the unknown

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and unpredictable. To this end they act as role models for the parties and their

lawyers who also have to sit with this uncertainty. To do this effectively mediators

need to be able to draw on their intuition and their intuitive responses to each

moment.

We use the word intuition in its traditional meaning, defined, in part, as; “the

immediate apprehension of the mind without reason” (The Concise Oxford Dictionary).

There are two parts this definition. The first is an immediate apprehension of the

mind and the second is that it comes from outside us and outside our reasoning

process. It is an immediate awareness that cannot be related back to our rational or

emotional mind.

A number of authors have given the word intuition a meaning opposite to its

traditional meaning. Kahhneman uses a definition by Simon who states that

intuition is nothing more than the recognition of stored memory. Kahhneman

defines ‘systems one’ thinking as - experiencing a reaction to an event which

produces a premonition. He refers to this as intuition. He also refers to intuitive

knowledge which he states operates automatically and quickly with little or no effort

and no sense of voluntary control (Kahhneman).

Kahhneman and Simon are prepared to only adopt the first half of the traditional

definition in that they accept that the intuitive awareness is an immediate

apprehension of the mind. However they have distorted the traditional meaning by,

in effect, deleting the words ‘without reason’ and replacing it ‘with reason’. The

examples of stored memory, intuitive knowledge, behavioural reflexes and common

beliefs are all awareness stemming from the rational mind. It is as if they cannot

accept that we have access to awareness that emanate from outside of us.

Lempereur (2003) in a paper titled “Identifying Some Obstacles from Intuition to a

Successful Mediation Process” associated intuition with common beliefs and

behavioural reflexes. However in his revised paper (2011) he has deleted the word

intuition from the title and replaced it in the introduction with the word instinct.

Instinct is defined in part as; “Innate propensity to certain seemingly rational acts

performed without conscious intention; innate usu, fixed pattern of behaviour especially in

response to certain simple stimuli.” (The Concise Oxford Dictionary)

Instinct is a reaction to something triggered from within us. There is a rational basis

supporting this reaction. Intuition is a product of something derived from

somewhere outside of us which has no rational basis to support it. I suspect that

Kahhneman and Simon are really referring to the word ‘instinct’ when they use the

word ‘intuition’.

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It is at this point that we can easily descend into a debate on definitions. The Concise

Oxford Dictionary also includes ‘intuition’ within one of the other definitions of

‘instinct’. However this can be a trap. The rational mind likes to name and define

complex concepts as a way avoiding the unpleasant uncertainties of going deeper

into intangible areas.

Defining something can create the illusion that the intangible is in fact tangible. It is

as if defining words like ‘instinct’ and ‘intuition’ illuminates them. However this

illumination can blind us to a deeper meaning. Bion refers to this in a translation of

a letter from Sigmund Freud to Lou Andreas Salome; “ The analyst must cast a beam of

intense darkness into the interior of the patients association so that some object that has

hitherto been obscured in the light can now glow in that darkness” (Grotstein)

We all have access to awareness from outside our emotional and rational minds

except when that rational mind puts conscious and unconscious blockages in front of

it. The art of connecting with our intuition is to detach from those blockages by

letting go of any attachment to our memories, desires and the need to understand

what is happening at any particular time (Bion 1981). These blockages include

Kahhneman’s ‘systems one’ and ‘systems two’ thinking both of which are drawn

from our own memories and desires. It requires us to practise and maintain an

evenly suspended attention to all that is going on before us (Freud, Riskin).

Intuition, using its traditional meaning, is an inner receptive sense organ which

allows us access or a pathway to things that are still in the dark or which have not

yet formed. We just have to detach from our rational mind by moving to a place

beyond thinking. A place where, Grotstein argues, we can be curious, unsaturated

and ready for the unexpected (Grotstein).

Professional intuition is found in a wide range of disciplines and is one of the

hallmarks of expert practice, especially in fields where professionals need to engage

with fast-moving, uncertain and often messy situations. Rather than representing

unreliable, vague feelings, intuition underpins and informs expertise, enabling

experts to notice and respond to both patterns and anomalies occurring in their work

Mediators using this approach need to have clear boundaries and possess a strong

ethical awareness of their roles and responsibilities to the process and to the parties

(Wilson).

Working in the here and now of the moment, being present for and with the parties

opens the door to a number of strategies drawn from many allied professions. These

include the principle of deferring persuasion (Rapoport); strategic reciprocal and

obligatory gift giving (Mauss); the employment of a number of hostage negotiation

techniques; the underlying concept of the analytic third and the shared field of

awareness.

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Theoretical Underpinnings of the Facilitative Mediation Model

It is important for mediators to understand the theoretical underpinnings behind the

facilitative approach. These include theories drawn from other disciplines:

a. Being in the Moment - Using Intuition as a Guide

The concept of being in the moment has its origins in the field of psychoanalytic

psychotherapy starting with Sigmund Freud in 1912. Freud wrote only five

papers on technique. The following is his suggestion on the preferred state of

mind of physicians who wish to practise analysis:

“It consists simply in not directing one’s notice to anything in particular and

in maintaining the same ‘evenly-suspended attention’ (as I have called it) in

the face of all that one hears. In this way we spare ourselves a strain on our

attention which could not in any case be kept up for several hours daily, and

we avoid a danger which is inseparable from the exercise of deliberate

attention. For as soon as one deliberately concentrates his attention to a

certain degree, he begins to select from the material before him; one point will

be fixed in his mind with particular clearness and some other will be

correspondingly discarded, and in the making of this selection he will be

following his expectations or inclinations. This however, is precisely what

must not be done. In making the selection; if he follows his expectations he is

in danger of never finding anything but what he already knows; and if he

follows his inclinations he will certainly falsify what he may perceive. It must

not be forgotten that the things one hears are for the most part things whose

meaning is only recognised later on” (Freud, 1912, p. 432).

Freud suggested we only learn or evolve through experiencing an experience.

This applies for the therapist as well as for the parties. He suggests that it is only

after experiencing something that we can recognise its meaning.

Applying this to the mediation context, if the mediator can be totally present in

the moment with the parties with their mind evenly suspended and observe the

parties without judging or rationalising then he or she can draw on that

experience to allow an intuitive awareness to crystallise. This intuitive response

arises out of the here and now of the moment and can assist the mediator in

deciding what to do next in the session.

Wilfred Bion (1981) expanded on Freud's thesis. He suggested that for analysts

to be present fully in the here and now of the session they have to detach from

their memories, desires and the need to understand what is happening at a

particular point in time. He stated that the problem is not having memories,

desires and a need to understand. We all have them. The problem is our attachment

to them in the session. These attachments get in the way of being in the moment.

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They fill a space in our mind that blocks out something new coming in. Both

Freud and Bion encouraged analysts to be in a state of mind that allowed

themselves to be surprised (Havens, Rooney 2008, 2011).

A number of modern writers have expressed these concepts using different

terms. The concept of ‘mindfulness’ also refers to paying attention to the

moment:

“It is a way of paying attention moment to moment with equanimity and

without attachment to whatever passes through the conventional senses and the

mind. A person in this state of present moment, non-judgemental awareness can

yet enjoy a degree of freedom from them which can lead to a better performance in

negotiation or mediation or any activity” (Riskin).

Another term used is ‘suspension’:

“In practice, suspension requires patience and a willingness not to impose pre-

established frameworks or mental models on what we are seeing.

If we simply observe without forming conclusions as to what our observations

mean and allow ourselves to sit with all the seemingly unrelated bits and pieces of

information we see, fresh ways to understand a situation can eventually emerge”.

(Senge, Scharmer, Jaworski and Flowers)

Thomas Moore emphasises the importance of moments. He notes that there is

a tendency for people to try to resolve tension as soon as possible. He suggests

that this is such a natural reaction that it may seem strange to suggest that

parties willingly remain in their discomfort. He states that we are conditioned

to want quick solutions. He points out that there are benefits from being

patient with contradictions and paradoxes. One benefit is the possibility of

finding more profound and lasting solutions to life’s problems. He states:

“A rush to find solutions can lead to something being quickly put together. If we

can tolerate moments of chaos and confusion then something truly new can come

to light. There may be new tensions and unfamiliar ambiguities to deal with, but

having won a fresh vantage point through the courageous endurance of tension,

we may be better equipped to understand the process, realising that illusions and

follies have their own roles to play in the mysterious alchemy of the soulful life”.

(Moore).

There has also been some recent research confirming that being in the moment

elongates time perception. Writing in the Journal of Psychological Science,

scientists from Stanford University in California led by Melanie Rudd and

Jennifer Aaker together with Kathleen Vohs from the University of Minnesota

concluded, on the basis of research that being in the present moment elongates

time, that experiencing awe relative to other states cause people to perceive that

they have more time available and that it can lessen impatience. This was found

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to lead to a stronger desire to spend time helping others and partake in

experiential goods over material ones. They noted that awe can be elicited by a

walk down memory lane, a brief story or even a sixty second commercial.

Daniel B Wile refers to solving the moment rather than the problem. He

maintains that what distinguishes Collaborative Couple Therapy from other

approaches to couple therapy is that it focuses on the moment rather than the

problem. He states that collaborative couple therapy is based on the concept that

when issues arise in the relationship between the parties each one suffers loss of

voice. Also as a couple they lose their connection. Further he states that the

therapist also has a problem in that they, the therapist, lose their empathy with

the parties.

Wile maintains that the therapeutic task is to solve the moment rather than solve

the problem. He states that by focusing on the moment it allows parties

individually and collectively and the therapist to recover from these losses. He

states:

“Solving the moment is a collaborative couple therapy way to solve the couple's

problem, since it creates the collaborative spirit that enables couples to arrive at

whatever practical solutions might be possible” (Wile).

The Third

Wile asserts that the therapist's empathy is the connecting bridge between a

therapist and the parties. However there is an alternative view. Thomas H.

Ogden suggests that in addition to the therapist and the individual party or

parties there is another entity in the room which is made up of a combination of

all three. It has been referred to as an intermediate third area of experience

which is contributed to by the analyst and the parties. Ogden maintains that the

intermediate area of experience belongs to both and to neither.

In psychoanalytic terms this entity has been called ‘the analytic third’. It has also

been called ‘intersubjectivity’ (Ogden). It can also be understood as the space

between the parties or the field which exists whenever the parties and therapist

are present together. The third or the field is jointly created in the conscious and

unconscious relationship between the people. It mostly dissipates when they

cease being together in that setting. It fully exists in the shared moment.

In the context of mediation the ‘analytic third’ or in this case the ‘mediatory

third’ (or it might have to be the mediatory fourth or fifth depending on the

number of parties in the mediation) is the creation of the interaction of shared

time, space and interrelationship experienced by the mediator and the parties.

Although each party still exists within his or her own subjectivity, the parties, by

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being in a mediation relationship with other people, also exists in the

intersubjective experience of that relationship.

All parties experience “the mediatory third” in the context of their own

personality systems, personal history and psychological makeup. While the

‘mediatory third’ is jointly created by all three parties it is not identical for each

participant. However because it is a shared experience all parties including the

mediator, add to or subtract from it with their conscious and unconscious

thoughts and actions.

For the mediator who is totally in the moment and detaches from their own

memory and desire the intuitive thought coming into their mind from this

shared relationship experience (intersubjectivity) can be highly pertinent. The

mediator can allow the co-created intersubjective area of experience to inform

him or her as to what is coming up in the mediation.

This connection by the mediator to the parties via the ‘third’ emphasises the

importance of Bion’s dictum of letting go of any overt attachment to our own

memories, desires and the need to understand and Freud's maintenance of an

evenly suspended attention. In practical terms it means that the mediator's own

negative thoughts about the parties or the prospects of success of the mediation

directly affects ‘the third’ at both a conscious and unconscious level. Likewise

positive thoughts about the parties and the success of the mediation also feed

into the collective ‘third’.

The suggestion is that there is energy in the room that is something more than

the sum of the individual parts. The mediator is as much a part of that energy

as are the parties. The mediator’s personality system, personal history and

psychological makeup play an equal part in the mediation process as do those of

the parties. This challenges some of the traditional mediation concepts of

impartiality and neutrality.

The presence of this ‘third ‘is often expressed in religious and spiritual

connotations with terms such as the Christian concept of ‘The Holy Spirit’, the

Dao 道, the ten thousand things and becoming one with the Tao.

An example of the presence of ‘the third’ can be found in the comments of M. J.

Slattery Q.C. when noting the connection between participation and human

reactions in his review of his first experience acting as a lawyer for a party in

mediation:

“The fatal step in mediation is to say yes to the idea in the first place. Mere

participation in the process works insidiously over time to suspend, then

overcome, much of the detachment of lawyers and the cynicism of their clients.

15

Once hours, days or even months have been spent mediating in a structured

environment, human reactions attempt to give all this activity some purpose. The

motivation to settle then appears”. (M. J. Slattery Q.C).

b. Deferring persuasion and problem-solving

Anatol Rapoport in his book Games, Fights and Debates examines how to increase

the likelihood that people will choose cooperation over self-interest in a debate

or conflict. His answer is to reduce the threats so that people can feel safe to

cooperate and give up their self interests.

He suggests that in order to make conflicts safe parties firstly need to postpone

persuasion and problem-solving until each person can state the other person’s

position (interests and concerns in mediation speak) to that person’s satisfaction.

The aim is to create attunement and increase cooperation. Gottman refers to

Rapoport’s principles and suggests that the ultimate goal of attunement is to

reduce the threat for participants and avoid what he calls flooding so that non-

defensiveness, understanding and empathy can occur.

Gottman defines flooding as a reaction where a person under pressure becomes

overwhelmed by negative affect. It usually consists of a mixture of emotions

such as grief and anger. When a person becomes flooded they would rather be

anywhere on the planet than where they are. Gottman maintains that the more a

person becomes flooded the more their ability to take on new information

decreases. He suggests that flooding erodes the level of trust and parties start to

act out of their own self-interest. A flooded person loses the ability to listen to

the other. When flooding is triggered it causes the heartbeat to rise above 95 bpm

and takes at least 20 minutes to recover. He also found are that men are quicker

to flood and de-flood than women.

Gottman suggests there are three parts to flooding:

“The first part is the shock of feeling attacked, blamed and abandoned. The second

part is awareness that we can't calm down. The third part is emotional

shutdown. When we are flooded we become like a city under siege. Conflict then

starts becoming an absorbing state. …… It suggests that when people are flooded

they cannot listen even though they might wish to. …. and can't be very

creative”(Gottman p 209)

Gottman states that attunement during conflict needs to be reciprocal. Therefore

he suggests that each party takes turns as speaker and listener. The listener is

required to attune, take notes and be able to repeat the speaker’s position

(interests and concerns) to the speaker’s satisfaction. This requires not only

summarising what the speaker has said but also validating the speaker’s feelings

16

and needs. He suggests that making this work requires postponing persuasion

and problem-solving so that defensiveness is reduced (Gottman).

This approach of creating reciprocal attunement mirrors the standard facilitative

mediation model in which the mediator takes a statement from each party and

reads it back in a way that not only summarises what each has said but

acknowledges and validates each parties feelings and needs. Gottman notes that

in practice it is often difficult for parties to stop expressing negative affect and

blame. The facilitative model of mediation attempts to counter this problem by

the mediator capturing each party's words and reading them back in a way that

converts the complaint into a positive need. The object is to create what Gottman

calls attunement between the parties.

c. The Obligation to Repay Gifts

The anthropologist Marcel Mauss (Mauss) has investigated the power of gift

giving in a number of societies. He suggests that the power inherent in gift

giving is universal. It invokes the principle of reciprocity (Coggiola) whereby

the gift received has to be repaid.

He suggests that in theory gifts are voluntary disinterested and spontaneous but

in fact they are given and repaid under obligation and self-interest. He asks what

force is there in the thing given which compels the recipient to make a return?

Even though the gift appears to be given generously it is in fact a form of

pretence and social deception. In Maori culture the spiritual power of the giver

remains embedded in the gift. When the gift is received the person receiving it

acquires this power. Through it the giver has a hold over the recipient. The only

way to expunge that power and to neutralise it is by reciprocating. This is the

motivating force behind the obligatory circulation of wealth, tribute and gifts in

Samoa and New Zealand (Mauss).

The pressure to reciprocate when receiving a gift has important implications for

mediators and the parties. Often an impasse can be broken by a simple gift given

by one party to the other. It can be as small as an acknowledgement or the

willingness to make a concession even if it is only very small. It invokes the

principle of reciprocity putting pressure on the other party to respond. This can

mark the beginning of a movement towards resolution.

One of the powers and advantages of working in the moment rather than

focusing solely on the problem is that it allows more opportunity for gifts to be

exchanged. A gift, no matter how small, can re-invigorate a relationship that has

atrophied. Gifts are often used to great effect in hostage negotiations as a

technique to pressure the hostage taker into reciprocating.

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d. Focusing on interests rather than positions

Many of the theoretical underpinnings of negotiation theory apply equally to

mediation. Parties in conflict generally present the problem to the mediator as a

conglomeration of their competing positions. Fisher, Ury and Patton in ‘Getting

to Yes’, their seminal book on negotiation, suggest that underneath these

positions are a series of underlying interests.

They contend that the basic problem in a negotiation lies not in conflicting

positions, but in the conflict between each party’s needs, desires, concerns and

fears. They suggest that interests motivate people; they are the silent movers

behind the hub of positions. That behind opposing positions lay shared and

compatible interests, as well as conflicting ones.

By the time the parties reach mediation their positions have often become fixed

and immutable. A mediator can create some dissonance in the parties’ thinking

by focusing on each moment of the relationship building phase of the facilitative

model. The act of postponing persuasion during this exploration period allows

time and space for the parties to ponder the why question. Why do they want

what they want? Why do they want that fixed position?

Positions are what people want. Interests are why they want that.

e. Separating the people from the problem

Fisher Ury and Patton also suggest that the basic fact about negotiations is that

you are dealing with human beings. They have emotions, deeply held values

and different backgrounds and viewpoints. They are unpredictable.

These emotions are generally expressed in the relationship plane rather than in

the defined problem plane. Failing to deal with others sensitively as human

beings prone to human reactions can be disastrous for a negotiation.

A major consequence is that the parties’ relationships tend to become entangled

with their discussions about issues of substance. It is therefore important that

mediators address both the relationship issues and the substantive issues.

Fisher, Ury and Patton suggest separating the people from the problem through

maintaining a good working negotiating relationship as they deal with the

substantive issue (Fisher Ury and Patton).

This again highlights the importance of deferring persuasion until a constructive

negotiating relationship has been established.

Conclusion

18

Mediators make choices on how they allocate their time with the parties. One choice

is to focus totally on the parties’ problem by chipping away at their positions until

sufficient concessions are granted by each side to achieve resolution. Engaging in

hard-nosed adversarial negotiations (positional bargaining) can have the appearance

of negotiating from a basis of power and strength. Yet, paradoxically, it is a soft

option compared to the challenges and dynamics of working with the parties on

their interests and concerns in the here and now of the moment.

The choice of working with the parties in the moment brings with it personal

challenges for the experienced mediator but at the same time, potentially, great

rewards. It does require a level of expertise. This expertise relates more to the

mediator's ability to think in a way which is detach from his or her own issues and

be totally present with the parties. It involves becoming comfortable with and

accepting the uncertainty of the moment. It is not something that is to be practiced

just prior to the professional encounter. It is something to be practiced throughout a

lifetime (Symington).

Citation : Rooney, Greg and Ross, Margaret Eleanor, 2140220 Available at SSRN:

http://ssrn.com/abstract=2140220

Margaret Ross and Greg Rooney have practised for more than 20 years as mediators in

Australia. They are both lawyers and have taught and trained mediators for a number of

public and private institutions over the last three decades. They, together with Barbara

Wilson from the UK, conduct annual residential mediation workshops in Tuscany, Italy.

www.gregrooney.com.au

Greg and Margaret would like to thank Murray Heath and Barbara Wilson for their

assistance in preparing this paper.

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