Moral Aspects of Mediation — ABA DR III

David Hoffman from the Boston Law Collaborative offered a program at the ABA Dispute Resolution Section Spring Meeting on “Mediator as Moral Witness: Right and Wrong.”  The question presented was: What happens when moral issues arise in the course of a mediation?  And, according to Hoffman, they always do.

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.  Disputes at their core have moral dimensions.  People involved in arguments consider themselves “right” and the other guy “wrong” — or worse.  And that sense of moral violation imbues the process itself.  Hoffman cited frequently-hear protestations from disputants in mediation: “We are arguing in good faith and they are just jerking us around.”  “They never had any right to terminate the contract.”  These are pleas to the mediator to vindicate their conduct.  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.

Beneath the primary level of conflict — that they are owed the money, say — this is a secondary level of conflict – that they are negotiating appropriately and the other side is not.  The affirmation they seek is not from the adversary, but from the mediator.  So a critical role of a mediator — whether she seeks it or not — is as “moral listener”  The 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.

Hoffman stated that most of us are passionately concerned with other people’s praise or blame.  Your ability to do deals with people is your “Social Capital,” the purchase we have on other’s moral trust.  And this is fundamentally implicated in facilitated negotiation.  It involves what is right, what is fair, as well as what is due and what is recoverable.

In Negotiation class, I often play the “Ultimatum game.”  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.  If the second person refuses the offer, neither keeps the money.  Any 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.  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 – 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.  There is also some facet of the game that is socially re-enforcing – 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.  Whether or not I gain, it is important that the other loses.

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.   How do we respond when people shoot themselves in the foot because they are morally engaged, and reject economically rational outcomes?  In large part it is “rule-assertion.”  People who do not reciprocate, for example, lose social capital and, over time, find it more difficult to do deals.  Mediators are sometimes called upon to distract disputants from their moral indignation and concentrate on practical or secular concerns.  As an example of an extreme instance of moral neutrality, Hoffman cited “The Fugitive,” in which Tommy Lee Jones’ character continues to hear that the fugitive did not kill his wife, by replying, “I don’t care.”  The mediator’s job is to concentrate on resolution, not to affirm innocence.

One participant offered that, sometimes, when someone says “It’s not the money, it’s the principle of the thing,” they mean it.  Principles do drive behavior.  Perhaps the perfect role of the mediator is as a morally aware and empathetic listener.  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 – but never herself being personally engaged in subscribing to, or rejecting, the moral concern that drives the disputes.  It’s not “I don’t care” – it’s “Your story matters enough to be worth others’ listening to.”

Hoffman provided these answers of his own:  Stories have great power, and everyone’s portion of the truth is their reality.  Telling a story overrides the facts, and stories add moral dimension to the facts.  It is always possible for a mediator to validate an intention – “It sounds like you were doing the right thing.”  “It sounds to me like you were operating as well as you could in a difficult situation.”  Said to the disputant, it may be heard as vindication.  Said in the presence of her adversary, it may lend insight and empathy.

Intentions are important; intentions are the things that implicate trust in the process of creating “social capital.”  Both disputants can be “good,” and a mediator can facilitate that discovery.

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