A recent vacation prompted re-assessment of the mediation room, the parties, and the mediator.
Partnered by the excellent Danielle Shalov, I spent quite a bit of time during the pandemic training lawyers, including New York State Court staff, basic and advanced mediation skills. And part of that training was always to show them the iceberg – the same iceberg that Peter Robinson used when training us in Pepperdine in 2008.
Look, Danielle and I would say. Look at the part we see and the part we don’t. The part we see in a dispute is the “positions” that the disputants are taking. The part we don’t see is the “interests” that the disputant is trying either to advance or to protect, and that give rise, imperfectly to the positions being taken. The dispute will resolve only when those interests are satisfied. So our job as mediators is to go below the surface – to identify and articulate what each party really needs out of this conflict. Find out what they want or need, find out the obstacles to their getting it, and work on collaboratively getting rid of those obstacles. Don’t concentrate on satisfying the positional demand; concentrate on satisfying the underlying interest, seeking methods in addition to those stated.
I recently visited Antarctica and got to know a few hundred icebergs. The iceberg cartoon that we use in our training resounded in many ways, and I saw in these magnificent objects many of the parties I have met in many of my hundreds of mediations. Taking an inflatable Zodiac among fields of Antarctic icebergs reminded me of the variations of the image I have encountered among real disputants.
Two observations to start with. The first is that the cartoon shows an untenable perspective – seen only by someone in the water with an iceberg, able to accurately observe both the air and the water simultaneously. Having spent a few days layered-up for Zodiac rides among these things, I can attest that in any water in which icebergs may be found, one thing that will not be found is me. Indeed, it is a fundamental tenet of mediator neutrality: Where the party is, there the mediator is not.
Also, the underwater part of icebergs is entirely unpredictable. Sometimes a small flat visible part is supported by a spiky or jagged base. Sometimes a modest piece of visible ice has a broad and unevenly shaped hidden part. The look of the presenting iceberg has no relationship to the look, size, shape, texture or volume of the underwater part.
Also, the underwater part is, as a practical matter, unobservable. You can see some of it, and then you can see some other of it, but you can never see the whole thing at once. Looking at the top, you can draw conclusions about the height and area of the bottom. But there is no perspective from which you can observe the entire bottom and determine its shape or size. And here you are, in the mediation room, giving yourself exactly that assignment. Is there any wonder that we err?
Sometimes, for example, you see two white bits out there, two positions that the party is insistent upon. Then after a while you notice that they refer to each other. They bob together – when one goes up, the other bobs down.
Getting closer, you see that the underwater base connects them. This is a single piece of ice with two points sticking up and visible. If you want to deal with either of the white parts you have to recognize, and deal with, the other as well, and of course the only way to get at that is to acknowledge and address the massive wonk of ice that is under the surface of them both – that, indeed, is the reason we’re here in the first place.
The cartoon entirely ignores a critical question that real icebergs raise all the time: How did this get here in the first place? Most disputants would much rather be back at work than spending all day in a mediation wrestling with someone who they think betrayed them, just as most pieces of ice would rather be on land than in the water. What caused them to be here against their will?
In general terms, there are two ways a piece of ice gets in the water: by avalanche or by glacial pressure. The mountains are covered by depths of snow, the accumulations formed by wind and packed by the weight of the snow above it.
The force of gravity, combined with the angle of the slope of the mountain, the temperature of the air and land, and the contours of the surface, gradually cause instability and the material begins to weaken its hold to the mountain.
Eventually the sheet slides down the mountain, falling into the sea in pieces large and small.
Some massive chunks sit at the foot of the mountain, many feet deep, and wait there until they are undermined and fall into the water.
By contrast, some walls of ice and snow reach the water because they are the face of a glacier, a slow-moving river of frozen matter that extends into the valley behind it. The face of the glacier is pushed by the pressure of the slowly moving mass so that it meets the water, and is forced into it, by virtue of the power behind it.
So you ask yourself: How did this party come to be here? Did it fall, or was it pushed? Or is it here because it split off of a larger bit of floating ice and now is abandoned, alone against its wishes? Or, are we dealing with a claimant – a party who, in some fit of irrationality or desperation, came to the conclusion that cold water is the right environment for it, unaware – or defiant – of the fact that time, temperature, and the other elements will inevitably reduce it to nothing? It happens a lot in a mediation room, but is unknown in nature.
Icebergs experience an erosion of their underwater “interests.” The parts exposed to the liquid water necessarily melt and erode, and their mass gently dissolves. Not so the part above the surface, which in fact might grow because of the deposit of more snow and ice. As the “position” part of the iceberg grows, it loses support from its “interest.” Yet it remains there, asserting itself over empty air.
It’s only a matter of time before these icebergs look down to discover what everyone looking at them knew from the moment they walked in the room: Nothing supports your position.
The position itself degenerates over time. As the position is exposed to the sun and wind, small cracks become large. Holes appear and widen. Eventually entire huge chunks will fall off the side and float away on their own.
Sometimes the “interest” that holds up the “position” erodes unevenly. It becomes lopsided on the top, or unevenly supported on the bottom, and the iceberg tilts. When that happens, the nose goes underwater and the feet pop up. But the original line demarcating the part above and the part below remains visible, like a scar of past experience that the newly adjusted object can’t be denied.
Everyone in the room sees what has happened, but the party herself refuses to acknowledge the “shift” in logic, insisting on her original demand. If anything, the original interest and position is flaunted.
While many icebergs are white, sone glow with a radiant blue/green tone. This means it’s old ice – packed over the years on the mountain or in the glacier. It has held its “position” for a long, long time, and is loathe to give it up.
Indeed, one wonders whether it can – whether, by now, its position is so hardened that it has become part and parcel of the party’s very identity.
There are the icebergs whose color tells you that this is not their first rodeo. Instead of being white or blue, they are clear.
This is crystal ice, sometimes appearing as “black ice.” It was thawed but then refroze, and is back in the water a second time. Veterans.
Sometimes a mediator can self-deceive in an effort to identify the underlying “interest” of a party. One is so sure that the “interest” is there, that one can confuse a true interest with a mere reflection of the “position” the client is working to convey to the mediator. What is the underlying concern, and what is merely the reflection of the position?
Has the mediator seen the truth, or instead only seen what she wanted to find?
Then there are “rolled” icebergs. When the underwater “interest” erodes to the point that the “position” is heavier than the “interest” supporting it, the entire mass just rolls over, like a World Cup player taking a flop. The “position” goes underwater entirely, the visible part now being the hitherto invisible “interest.” This iceberg presents as smooth, rounded, and showing publicly the part it used to hide.
When this happens in mediation, one realizes that all that great and important stuff, that intricate and hard-fought position that the party has been protecting for all these hours, is not only no longer being asserted, but indeed has been abandoned entirely and is now dumped into the water. What we’re hearing now is the need, naked and unadorned. When it happens in a dispute of some scale, it can be pretty spectacular.
The ultimate lesson I took from my brief but intense encounter with icebergs is the need, when I mediate, to accept as inevitable my incapacity. I cannot, as a mediator, fully understand a party. Often I am not able to understand a party even adequately. All I can do, on a good day, might be to prompt a party to understand herself and her private and intimately held goals in this conflict.
The cartoon seeks to teach us that, once we acknowledge that the visible is only 15% of what’s in the room, then the 85% is what our job is to identify and satisfy. Well, no. The visible is the only thing we can identify. The 85% is important to accept as present, but it is necessarily unknown and unknowable to us. Moreover, frequently even the party herself is unaware of it, and incapable of accurately assessing it. And, too often, the party’s being advised by counsel whom they trust, and who is either obstinately ignorant of the underwater part, or is aware of it, is intentionally denying it, or is mischaracterizing it for professional gain.
So the mediation takes place in a state of shared ignorance and mystery, characterized by no one attribute as much as unavoidable obstacles to clarity. The party is the only one positioned actually to address the shape, volume and contour of the interests that support the demands she is making. As mediators, all we can do is acknowledge and respect our own necessary ignorance, and in that state help the party to assess their current condition, how they got here, and what options they have to get out.