David Hoffman from the Boston Law Collaborative offered a program at the ABA Dispute Resolution Section Spring Meeting on \u201cMediator as Moral Witness: Right and Wrong.\u201d\u00a0 The question presented was: What happens when moral issues arise in the course of a mediation? \u00a0And, according to Hoffman, they always do.<\/p>\n
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Despite what we mediators are trained to anticipate, clients come to mediation charged not with frustrated interests, but with grievances that implicate their own experiences of right and wrong. \u00a0Disputes at their core have moral dimensions.\u00a0 People involved in arguments consider themselves \u201cright\u201d and the other guy “wrong” — or worse. \u00a0And that sense of moral violation imbues the process itself. \u00a0Hoffman cited frequently-hear protestations from disputants in mediation: \u201cWe are arguing in good faith and they are just jerking us around.\u201d\u00a0 \u201cThey never had any right to terminate the contract.\u201d\u00a0 These are pleas to the mediator to vindicate their conduct.\u00a0 They want to be acknowledged on some moral level and they examine us, as mediators, for signs that, in the eyes of the neutral observer, their behavior was correct.<\/p>\n
Beneath the primary level of conflict — that they are owed the money, say — this is a secondary level of conflict \u2013 that they are negotiating appropriately and the other side is not.\u00a0 The affirmation they seek is not from the adversary, but from the mediator.\u00a0 So a critical role of a mediator — whether she seeks it or not — is as \u201cmoral listener\u201d \u00a0The party expects that the mediator will acknowledge that the claimant has been heard; and, moreover, that their concern that the issue is about more than just them, and instead has social or moral dimension, has been heard.<\/p>\n
Hoffman stated that most of us are passionately concerned with other people\u2019s praise or blame. \u00a0Your ability to do deals with people is your \u201cSocial Capital,\u201d the purchase we have on other\u2019s moral trust. \u00a0And this is fundamentally implicated in facilitated negotiation. \u00a0It involves what is right, what is fair, as well as what is due and what is recoverable.<\/p>\n
In Negotiation class, I often play the \u201cUltimatum game.\u201d\u00a0 Someone is given $100 on the condition that part of it is to be offered to someone else and, further, that that person accepts the offer. \u00a0If the second person refuses the offer, neither keeps the money. \u00a0Any offer, no matter how small, is rationally acceptable, because it is “found money” and leaves the recipient better off than she had been before the offer was made.\u00a0 But in practice there is a level of niggardliness beyond which the offer is refused, because the offeree perceives that it violates some notion of fairness \u2013 some notion of having been humiliated or exploited, even where the money is free and there is no question of exploitation on any true meaning of the term.\u00a0 There is also some facet of the game that is socially re-enforcing \u2013 that people who are too piggy should be told they have crossed some line, and it is worth a certain amount of money to be the person who delivers that message. \u00a0Whether or not I gain, it is important that the other loses.<\/p>\n
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Mediators witness this and other examples of moral behavior every day, but we don’t always develop a principled skill in dealing with it in a helpful way. \u00a0 How do we respond when people shoot themselves in the foot because they are morally engaged, and reject economically rational outcomes?\u00a0 In large part it is \u201crule-assertion.\u201d\u00a0 People who do not reciprocate, for example, lose social capital and, over time, find it more difficult to do deals.\u00a0 Mediators are sometimes called upon to distract disputants from their moral indignation and concentrate on practical or secular concerns. \u00a0As an example of an extreme instance of moral neutrality, Hoffman cited \u201cThe Fugitive,\u201d <\/a>in which Tommy Lee Jones\u2019 character continues to hear that the fugitive did not kill his wife, by replying, \u201cI don\u2019t care.\u201d\u00a0 The mediator\u2019s job is to concentrate on resolution, not to affirm innocence.<\/p>\n One participant offered that, sometimes, when someone says \u201cIt\u2019s not the money, it\u2019s the principle of the thing,\u201d they mean it.\u00a0 Principles do drive behavior. \u00a0Perhaps the perfect role of the mediator is as a morally aware and empathetic listener.\u00a0 Another participant said that, after several years of coming into the room with her own sense of morality, she eventually developed the ability to encourage parties to express their narrative privately, and ultimately in ways that the other party could hear \u2013 but never herself being personally engaged in subscribing to, or rejecting, the moral concern that drives the disputes.\u00a0 It\u2019s not \u201cI don\u2019t care\u201d \u2013 it\u2019s \u201cYour story matters enough to be worth others\u2019 listening to.\u201d<\/p>\n Hoffman provided these answers of his own:\u00a0 Stories have great power, and everyone\u2019s portion of the truth is their reality.\u00a0 Telling a story overrides the facts, and stories add moral dimension to the facts. \u00a0It is always possible for a mediator to validate an intention \u2013 \u201cIt sounds like you were doing the right thing.\u201d \u00a0“It sounds to me like you were operating as well as you could in a difficult situation.” \u00a0Said to the disputant, it may be heard as vindication. \u00a0Said in the presence of her adversary, it may lend insight and empathy.<\/p>\n Intentions are important; intentions are the things that implicate trust in the process of creating “social capital.” \u00a0Both disputants can be \u201cgood,\u201d and a mediator can facilitate that discovery.<\/p>\n","protected":false},"excerpt":{"rendered":" David Hoffman from the Boston Law Collaborative offered a program at the ABA Dispute Resolution Section Spring Meeting on \u201cMediator as Moral Witness: Right and Wrong.\u201d\u00a0 The question presented was: What happens when moral issues arise in the course of a mediation? \u00a0And, according to Hoffman, they always do.<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[35,14],"tags":[15],"class_list":["post-1404","post","type-post","status-publish","format-standard","hentry","category-ethics","category-mediation","tag-mediation"],"aioseo_notices":[],"_links":{"self":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts\/1404","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/comments?post=1404"}],"version-history":[{"count":0,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts\/1404\/revisions"}],"wp:attachment":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/media?parent=1404"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/categories?post=1404"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/tags?post=1404"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}