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John Lande This article has been republished with permission. The original publication can be located within Indisputably.
Marc Galanter, a giant in the field of dispute resolution scholarship, passed away on April 14 at the age of 95.
Here is an excerpt from the announcement by University of Wisconsin Law School Dean Daniel P. Tokaji (reprinted with permission):
As many of you know, Marc was the John and Rylla Bosshard Professor of Law and South Asian Studies, the author of many books and articles, and a treasured member of the Law School community. Marc was a legendary scholar and teacher, to such a degree that it’s hard to know where to begin in summarizing his life’s work. With 6,751 citations (according to HeinOnline), Marc is UW Law’s most cited scholar ever. Very few law professors anywhere have had the impact that Marc has, and on so many different subjects. Our digital repository includes 188 books, articles, chapters, and other scholarly works that Marc published over his career, between 1959 and 2025. Many of them are about how the legal system, in the U.S. and elsewhere, actually functions in practice. While there are many people who embody our Law in Action tradition, it’s hard to think of a better exemplar than Marc.
A leader of the law and society movement, Marc’s most famous and perhaps most influential article is Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change, published in 1974. One study found this be the 37th most cited law review article of all time, and Marc was among a very small number of scholars to have two in the top 100. Like all Marc’s work, it is nuanced in its exposition of the problem at hand, identifying a distinction between “one-shotters” and “repeat-players” that partly (though not completely) overlaps with inequalities in resources.
Another must-read from Marc is Lowering the Bar: Lawyer Jokes and Legal Culture, a study of what lawyer jokes reveal about the U.S. legal system and society of which we are part. Like much of his work, the book questions conventional wisdom to expose the complex relationship between people and legal institutions. If Marc’s work seldom offers easy answers, it always helps the reader better understand the web of forces that create the reality in which lawyers, clients, and other members of society operate.
Beyond the numbers and canonical works, Marc’s impact has been – and long will be – felt through his relationships with so many colleagues and students over the years. On reviewing the many tributes to Marc written during his life, I’m struck by his openness to taking a personal interest in students and early-career scholars, in ways that made a transformative difference to them. This is an example that all of us might strive to emulate.
Marc and Me
I was fortunate to be one of the students in whom Marc took an interest. As a doctoral student at the University of Wisconsin, I had the great good fortune to be a student in his Sociology of Law: Disputing, Litigation and Social Change course in 1990. It was a demanding course – do you assign students to read 1000 pages these days? – and I loved it. I had read Why the Haves Come Out Ahead, and I was excited to take a course from Marc.
The course required students to write a paper, and I had the brainstorm of offering to be an unpaid research assistant by writing about something he wanted to explore himself. It worked! I wrote a paper about varieties of dispute resolution processes, which he incorporated into a book chapter, Private Courts and Public Authority. He listed me as a co-author and split the honorarium – which I hadn’t expected. In short order, I became his paid research assistant. He was an important member of my dissertation committee, and he helped me get a fellowship at Harvard’s Program on Negotiation to finish my dissertation.
He was an intellectual model who paid careful attention to empirical reality, meticulously analyzed conventional wisdom, and avoided simplistic critiques and advocacy. He identified realities that others never noticed. I loved his clever, understated, and wry language.
In commenting on his Why the Haves article in the first Discussions in Dispute Resolution volume, I called him a “pragmatic romanticist,” contrasting him with litigation romanticists that Carrie Menkel-Meadow aptly criticized, as well as ADR romanticists in our own field. He sought to help have-nots gain greater social influence and benefits by providing “a clear-eyed view of the world, unbiased (as much as possible) by romantic aspirations.” He wanted social justice advocates to have realistic expectations necessary to make real progress and persist in long-term reform efforts.
a gem that deserves more attention. It illustrates Galanter’s penchant for conceptualizing the legal system broadly and for reflecting complex interactions with the rest of social life. Rather than focus on individual cases as the unit of analysis in which cases are largely independent of each other, Case Congregations focuses on “congregations” of cases as the cases interact and the congregations evolve over time. Like a naturalist, Galanter creates a taxonomy of cases with populations, families, and congregations of cases.
I defy you to read this article and think of litigation the same way ever again.
The legal profession and academy – and the dispute resolution field in particular – have been so fortunate for Marc Galanter’s great contributions to our world.
John Lande This article has been republished with permission. The original publication can be located within Indisputably.
Colleagues recently had a lively discussion on the DRLE listserv about negotiation and mediation theory. This post summarizes my perspective and includes my posts in that discussion.
I hadn’t planned to write the series of posts, but comments in this thread prompted me to summarize my perspective. Many of the comments raise broad questions about the models and language we use to describe negotiation and mediation.
Ideas in our field evolve much like they do in other fields. Influential frameworks emerge, help people think more clearly about important problems, and – over time – people see their limitations and develop improved approaches.
The negotiation and mediation theories developed in the 1980s and 1990s made important contributions. Len Riskin published his grid 32 years ago. Getting to Yes was published 45 years ago.
After all these decades, it’s not surprising that we see both the strengths and limits of these ideas.
To address those problems, I developed Real Practice Systems (RPS) Theory, which focuses on how negotiation and mediation actually work in practice.
This post highlights the benefits of RPS Theory and invites you to incorporate it in your work.
Benefits of RPS Theory
RPS Theory improves on traditional negotiation and mediation frameworks in some important ways:
Focuses on helping parties make good decisions by using multiple techniques rather than relying on a single model.
Highlights parties’ tangible and intangible costs of continuing a dispute, not just expected court outcomes.
Examines the entire dispute resolution process, including preparation before negotiation or mediation sessions and reflection afterward – not just the interaction across the table.
Emphasizes preparation, highlighting the analysis that occurs “behind the table” before parties meet.
Recognizes that strategies in a dispute evolve over time as parties gain information and experience.
Focuses on the people involved, including their experience, skills, goals, motivations, values, and the kinds of cases and parties they encounter.
Recognizes the central role of lawyers, encouraging parties to obtain legal advice about likely outcomes and strategy early in the process rather than only during mediation sessions themselves.
Integrates negotiation and mediation into a single framework reflecting how practitioners actually move between these processes in real cases.
Can be used by practitioners regardless of their preferred negotiation or mediation theories.
Uses clearer language, avoiding much of the confusing jargon that has developed in traditional negotiation and mediation theory.
RPS Theory has also yielded practical tools. In particular, I developed detailed checklists for mediators and attorneys representing clients in mediation that outline procedures before, during, and after mediation sessions as well as ethical obligations and methods for improving practice.
Applying RPS Theory Through RPS Coach
These ideas are incorporated into the AI tool RPS Negotiation and Mediation Coach, aka RPS Coach. It can help mediators, attorneys, parties, program managers, educators, and students apply the insights reflected in the checklists quickly and conveniently. Among other things, it can help users:
Analyze negotiation and mediation situations more systematically and efficiently.
Prepare for negotiations and mediation sessions by identifying issues that might otherwise be overlooked.
Use clearer language that avoids much of the confusing terminology in traditional negotiation and mediation theory.
In short, the goal is to develop frameworks and tools that reflect how dispute resolution actually works in practice.
Invitation to Use Updated, Practice-Based Theory and Tools
For many years, practitioners and scholars have recognized limitations in traditional negotiation and mediation theories but lacked frameworks that better reflect how dispute resolution actually works in practice. RPS Theory is an effort to provide such a framework.
I invite you to incorporate insights from RPS Theory in your writing, teaching, training, and practice – and to gain the benefits of using an AI tool based on RPS Theory.
By Rory Gowers, Transformation Architect and Principal of The Constructive Solution This article is 2 of 3 within the series and is re-published with permission. The original publication can be found at www.myrespectability.com
The Intercultural Test
Two blogs into this series we have built a framework, named the smudges, and invited the profession to audit itself honestly. This blog completes the quest – taking LENS into the intercultural space to ask whether it holds, and then in The Crystal Lens, issuing a call to the circle. The Intercultural Test is the hardest test of all. Because if LENS only works in a monocultural room between parties who share the same assumptions about what a fair process looks like, it isn’t a framework. It’s a cultural preference dressed as methodology.
I want to begin with a confession.
Everything this series has argued – role clarity, party agency, the file at the door, the mediator lens, the sanctity of the space – sits within a tradition that has a cultural address. It comes from a specific set of assumptions about the individual as the primary unit of decision-making, about the value of explicit verbal negotiation, about what a fair process looks like.
That address is broadly Western. Broadly Enlightenment. Broadly Christian in its moral inheritance. Broadly Anglo-Australian in its professional expression. Broadly masculine.
I say this not to undermine what has been argued. I say it because intellectual honesty is the foundation for everything LENS requires – and a framework that cannot acknowledge its own cultural situatedness is not a framework. It is an assumption that has forgotten its origin.
Women are from Venus. Men are from Mars.
‘Two people divided by a common language’ was once used to describe the communication challenges between Australia and its long-standing ally United States of America. However closer to home for us all is the gulf in communication between women and men.
If two people who love each other, chose each other, and have shared a life together for decades can still be operating from fundamentally different frameworks – different orientations to the world, different communication needs, different understandings of what conflict means and what a resolution looks like – then the intercultural challenge is not a specialist problem. It is the human condition.
And a better translator does not solve it. Because the problem was never the words. It has always been the world behind the words.
What each person needs – before, during and after – is not just different in content. It is different in kind. Impossible to fully explain in the common language, because the need exists in a register the other framework simply does not have a category for.
Every culture on the planet recognises this problem. Which is precisely why it is the right place to begin.
What Intercultural Actually Means
When most people hear the word intercultural, they think of nationality. Different countries. Different ethnicities. Different customs. Sensitivity training.
That is cultural awareness. It is useful. But that is not what interculturality is about.
Intercultural, in the fullest sense, means any encounter between people whose fundamental frameworks for understanding the world – conflict, resolution, relationship, authority, time, silence, identity, and justice – are built on different premises. It includes, but is not limited to:
Ethnicity, race, and Indigenous identity. Faith and worldview. Gender identity and sexual orientation. Neurodivergence. Disability and chronic illness. Class and socioeconomic background. Age and generation.
Venus and Mars are just the beginning. But it is the example that proves the point. Every culture on the planet has its version of this divide – and every culture knows that the needs of the two parties in the room are genuinely, deeply, and sometimes irreconcilably different.
What all these communities’ share is this: a different framework for understanding the world that may be entirely invisible to the mediator – and a long history of processes that claim neutrality while being built around someone else’s normal. Whatever that really means.
The Box We Were Born Into
What is normal? It is the content of the box that was waiting for us when we arrived on this planet. We did not choose it. We did not examine it. We did not even know it was there – because from the inside, a box with no visible walls does not look like a box. It looks like reality. It contained the values, mores, and understandings about life, and what differentiates our tribe from another tribe, what makes us implicitly the best. And others not so good.
A young American once asked me: “What does it mean to be Australian?” I was completely nonplussed. Not because it was a bad question. Because it was a question I had never needed to ask myself. My box was simply – home – just what everyone does – normal.
We have phrases for this invisible assumption. “You know.” “Everyone knows.” But do they?
The party who does not share the same box will rarely say so. Because admitting you don’t know what everyone knows – in a room full of people who apparently do – is one of the most exposing things a human being can do. So, they stay silent. And that silence is mistaken for understanding. Or agreement. Or consent.
That is not a neutral process. That is a process that has already decided who belongs – before anyone opened their mouth.
The Intercultural Test
Here is the challenge stated directly.
Neutrality is a Western concept. Developed in a Western tradition. Expressed through Western process architecture. Practiced by Western-trained mediators who have in many cases never examined the cultural assumptions their practice carries. That is an honest acknowledgment. The critics are right about that.
The intercultural test is this: does neutrality survive the challenge of the genuinely intercultural room – or does it simply become another form of Western cultural imposition dressed as fairness?
The answer turns on one precise insight.
Neutrality must be neutral to process architecture – or it is not neutral at all.
Consider the Venus and Mars room. A standard Western mediation process drives toward resolution. Closure. A decision made. Forward movement. But resolution is not a neutral outcome. It is a Western outcome. More specifically, it is a masculine-Western outcome – one that preferences the framework that says: get to the answer, close the file, move on.
The party who needs to be fully received before they can engage with any outcome – who needs the relationship honoured before the resolution can be real – is structurally disadvantaged before they sit down. Not by the mediator’s personal bias. By the process architecture itself.
The mediator who enters the room with a fixed process has already taken sides with the fixer culture. Even before the parties walk in.
Adaptive Practice – The Mediator’s Real Toolkit
Genuine neutrality in the intercultural room does not require the mediator to have specific cultural knowledge or language proficiency about every culture. It requires something more fundamental: the capability to design a process from scratch, around the parties in front of them, based on their implicit and explicit needs – before commencing the joint meeting. For more on the preparation and reframing work with each party, refer to Steps 1 and 2 of the myRESPECTability framework.
This is adaptive practice. And it is the discipline that makes genuine neutrality possible.
The mediator’s toolkit is not a library of cultural knowledge. It is a set of capabilities – process design skills, diagnostic questions, relational instincts, and the humility to hold a process lightly enough to reshape it as the room requires.
Think again of the Venus and Mars room. The skilled mediator does not apply one process to both parties. They read – carefully, humbly, without assumption – what each person needs before, during, and after. And they craft the environment accordingly. That is adaptive practice. That is neutrality made real.
But adaptive practice without genuine neutrality is a sham. The mediator who has the toolkit but not the inherent predisposition – who has not examined their own box, who holds a quiet preference for how this should resolve – will default to their own cultural template under pressure. Their cultural competency becomes sophisticated role contamination. More dangerous than the crude version, because it is harder to name and easier to hide behind.
One Principle. Many Processes.
Different cultural frameworks hold different understandings of what a good outcome looks like. The mediator who does not know this has already failed the intercultural test before the process begins.
In a broadly Western, masculine-framed framework – the goal may be resolution. A decision made. An agreement signed. The conflict closed.
In a broadly Eastern framework – the goal may be harmony. The restoration of relationship within which the conflict lived. An agreement that leaves the relationship damaged is not a good outcome. It is a Western outcome.
In a broadly Indigenous framework – the goal may be something deeper still. Perspective. Connectedness. The restoration of relationship with community, with lore, with Country.
A process that rushes toward resolution without honouring the deep context and relational obligations at stake has not resolved anything. It has imposed a timeline on something that does not belong to time in that way.
And in the Venus and Mars room – one party may need resolution. The other may need to feel genuinely received before any outcome can be real. Both are valid. Neither is neutral.
The neutral mediator holds no preference among these. Their process serves whatever a good outcome looks like for these parties, in their frameworks, on their terms.
The Long View
There is urgency in the argument the Western mediation profession has been slow to heed.
The Eastern cultural tradition already practices what Western mediation claims to value. It takes the long view. It advances steadily. It preserves relationship. It protects face. It does not mistake speed for wisdom, or resolution for peace. It knows that the outcome which holds is the one both parties can live with – not the one that was most efficiently produced.
If Western mediation practice does not quickly learn such flexibility – does not demonstrate that its principles can be lived in genuinely adaptive process – it will lose its exalted place in global negotiation training and practice. The process of the future will be what the dominant culture of the day mandates. The privilege of mandating a dominant process has been with the West in the current era. It will not always. As one book title says, “The Future is Asian.”
The hope – and it is a genuine one – is that genuinely adaptive practice offers something the dominant power calculus cannot. A process that preserves face, produces wise outcomes, and protects future relationships is not a concession to any one cultural framework. It is the fullest expression of what mediation was always supposed to be. And it is something any culture, including the most dominant, can recognise as worth having.
The window to show that western mediation can adapt itself is still open. If we move now.
The Standard
Neutral mediation practice must use adaptive process that:
Preserves face – for every party, throughout.
Produces wise outcomes – not resolution, not harmony, but whatever constitutes genuine wisdom in this room, for these parties, in their frameworks.
Provides a respectful experience – so that every party feels genuinely received, not processed.
Protects future relationships – because the agreement is not the end. The relationship continues.
Fully respecting the cultural needs of each party.
That is not a Western standard. That is not an Eastern standard. It is the sincere standard – without crack. The gold standard.
And think again of the Venus and Mars room. Even the most intimate intercultural divide – the one at the kitchen table – requires a mediator who can hold all four simultaneously.
LENS and the Intercultural Room
A smudge-free LENS is what makes this possible. Not just in the mediation room – but in preparation, in practice, and in the fulfilment of agreements.
In preparation – the mediator who examines their own lens before entering the room can see what framework they are bringing, what assumptions their process architecture carries, and what needs to be set aside before the design begins. Critically, this preparation includes time with each party in advance – to understand their deep process needs, their framework for a good outcome, and what the space needs to feel like for them to engage fully and safely.
In practice – the mediator with a clean lens can read the room as it is. Not as their framework tells them it should be. They can hear what is not being said. They can recognise when their process is not serving a party. They can adapt – in real time, without losing their role.
In the fulfilment of agreements – the mediator who has held genuine neutrality throughout can ensure that what was agreed genuinely reflects the needs of all parties – not just the party whose framework the process happened to serve best.
The intercultural room does not expose LENS as inadequate. It reveals why LENS is necessary. Because the mediator who cannot see clearly cannot adapt wisely. And the mediator who cannot adapt wisely cannot be genuinely neutral where it matters most.
Because Of
It is because mediation at its best is an expression of a profound commitment. That every person – because of their cultural background, their language, their lore, their neurodivergence, their identity, their relationship to community and to Country – deserves access to a process that genuinely serves their capacity to resolve their own conflicts on their own terms.
Not regardless of who they are. Because of who they are.
A place for all. Peace for all. In our time.
The Crystal Lens – A Call to the Circle
The argument is made. The audit is complete. What remains is something different.
Let me begin with another admission.
I have been in rooms where I dropped the lens. Where the file opened quietly and the outcome I could see began, almost imperceptibly, to shape the process I was running. Where the pull was stronger than the discipline and I told myself it was expertise rather than contamination.
I know what that feels like from the inside. It feels like clarity.
And I know what it feels like to catch it – to notice the drift, name it honestly to myself, and correct. That feeling is different. It is quieter. Less certain. Truer. I sleep better.
You are not alone in that gap.
The Hero’s Journey
There is an old story that runs through every culture, every tradition, every age. The hero receives a call. They resist it, or answer it, or stumble toward it without quite knowing what it is. They face trials that test everything they thought they knew about themselves. They lose the path and find it again. They carry something – a talisman, a truth, a practice – that reminds them who they are when the darkness is thickest.
Mediation, practiced with integrity, is that journey. Not once. Not in a single transformative room. But daily. At every threshold.
The call comes differently to different people. Some hear it clearly – a moment of vocation, a certainty that this work matters in a way that goes beyond the fee and the settlement rate. They answer it with fire.
Some haven’t heard it yet – or aren’t sure they ever will. They show up anyway. They vouch to do their best with honour for the right. That commitment, made honestly without the romantic certainty of calling, is its own form of heroism. Perhaps the purest form.
And some are here because they want to support the ones who are answering the call. To learn from them, encourage them, make the circle stronger. That quiet generosity is as necessary to the profession as the most gifted practitioner in the most difficult room.
All three are welcome in the circle. All three are needed.
The Crystal Lens
After everything this series has argued, the instrument is this.
Looking — at yourself first. At your own box, your own smudges, your own predispositions before you enter the room.
Effective — in service of the parties’ capacity to resolve what only they can resolve. Not your expertise. Their wisdom.
Neutral — to outcome, to process architecture, to cultural preference. The sole and unshared obligation that sits on the mediator’s shoulders alone.
Secure — in your role. Clear about what you brought in and what you left at the door. Fit for purpose. Present.
That is the crystal lens. That is what you carry into every room.
The crystal-clear lens is not the lens of the mediator who never smudges it. That mediator does not exist.
The crystal-clear lens belongs to the mediator who knows exactly how it gets smudged – and who has stood at the threshold, put aside the file, taken three breaths, and entered not with certainty but with discipline, curiosity, and a genuine orientation toward the parties’ wisdom rather than their own.
It belongs to the mediator who stumbles and falls and fights on.
Not for glory in the ordinary sense. For something quieter and more durable. The knowledge that in this room, on this day, with these two parties who came in carrying something heavy and leave carrying something lighter – they did their job. Cleanly. With honour. With the lens as clear as they could make it.
That is enough. That has always been enough.
Looking – Effective – Neutral – Secure
The Circle
I want to invite you, explicitly and without ceremony, into a circle.
Not an organisation. Not a movement. Not a brand.
A circle of practitioners – called or committed or quietly supportive – who have decided, together, that neutrality is worth holding. That the parties in every room deserve a mediator who has put aside their file, picked up their lens, and entered with full presence and genuine trust in the parties’ capacity to resolve what only they can resolve.
A circle of humble heroes. Fallible. Persistent. Oriented toward something larger than their own expertise or reputation or professional identity or recognition.
Some of you have been in this circle for decades without having a name for it. This series was written for you. To give language to what you already knew.
The name is professional discipline. The name is fitness for role. The name is LENS.
The Answer
Should neutrality be scrapped once and for all?
After three blogs. After role contamination and the perfection shrine and the file at the door and the mediator lens and the self-audit and the intercultural test.
After everything.
Never.
Pick up the lens. Enter the room. Trust the parties.
Do your best with honour for the right.
The circle is forming. The quest continues.
A place for all. Peace for all. In our time.
You are enough. You are my hero. You are the hope. I salute you.
This concludes the series: Should Neutrality be scrapped once and for all? – Reclaiming Neutrality as Professional Discipline and Fitness for Role.
The conversation continues. Share your percentage. Name your smudges. Join the circle.
Author Biography
Rory Gowers is a Transformation Architect and Principal of The Constructive Solution, specialising in intercultural dispute resolution. He holds a Master of Dispute Resolution from UNSW, a Master of Education from UTS, and over 1000 hours of mediation practice. He is Australasian Ambassador for Medianos, the innovative Italian conflict resolution game now available in Australia and New Zealand.
Editor’s Closing, By Milan A. Nitopi
This article brings Rory’s concepts full circle. Issues of mediator neutrality are challenged and examined by adopting an intercultural lens, and builds upon his previous research and contributions in this same space. Rory’s framework for reflection is invaluable to a mediator’s toolkit, both in strengthening their own professional identity and further developing their skills for mediation practice.
Rory’s question to you: Are you in the circle? And if not yet – what is your next step toward it?
Editor Biography
Milan Nitopi is an Australian lawyer, mediator and Family Dispute Resolution Practitioner with a Master of Laws in Family Dispute Resolution (LLM FDR). His passion concerns people, law, and resolution, and he strives to equip people with skills for better communication and dialogue to address all kinds of conflict.
By John Sturrock This article has been republished with permission. The original article can be located at Kluwer Mediation Blog.
David Hoffman is a very highly regarded US mediator and an equally authoritative Harvard academic, whose writing about mediation and conflict resolution is always rich and thoughtful. Thus, his book about ‘The Art of Impasse-Breaking in Mediation’ promises much and it certainly delivers.
The underlying theme of the book is achieving fair, efficient, stable and wise solutions. Its aim is to enable mediators, lawyers and other conflict resolvers to fill their toolboxes with techniques for breaking impasses and help people to turn conflict into creative solutions – and to equip them to do the important work of peacemaking more effectively.
The book, written with Hoffman’s customary humility and respect for parties in conflict, is easy to read and full of helpful advice. It serves as both reassurance for experienced mediators, who will recognise many of the author’s suggestions, and an excellent resource for any mediator, whether starting out in practice or looking to add new strategies to their repertoire after years of experience. Hoffman is able to draw on his own years of experience to illustrate his points with pithy stories (his own and those of other mediators) and this adds greatly to the book’s utility. I also found the footnotes useful as pointers to further reading and as evidence of Hoffman’s deep understanding of the field.
Some of the most interesting and helpful earlier sections of the book deal with the emotional and psychological aspects of mediation – there is “no more important area for continuing education” – and the author’s frequent references to the Internal Family Systems Model emphasise how useful he finds this model in practice, to assist mediators in our understanding of, and compassion for, both parties in conflict and ourselves as mediators. It enables the mediator to handle the ambivalence experienced by many of those in conflict where both anger and pragmatism can be strong forces.
Encouraging parties to listen to their “inner mediator” to discover what they can live with enables “Self-led decisions” to be reached, consistent with mediation’s fundamental principles of empowerment and self-determination. I found the sections on Kahneman’s Thinking Fast and Slow, Jonathan Haidt’s The Righteous Mind and cognitive biases particularly helpful, together with the later discussion of Kahneman’s work with Amos Tversky on risk tolerance and risk aversion, in a chapter which also addressed topics such as loss of face and issues of principle.
We often hear mediation described as taking place in the shadow of the law. However, the author underscores his repeated advice not to demonise conflict, courts, judges and the rule of law by preferring the expression “in the light of the law”. That is a nice reframe!
In the chapter on process options, we are reminded that, in the words of a colleague, “Every mediation has a beginning, a middle, and an end, but not always in that order.” How true! As is the admonition that if mediators are working harder than the parties to break an impasse, they are working too hard. In that chapter, topics include the use of humour, food, silence, stories and metaphor. Mediators will recognise the difficulty faced by mediators when lawyers expect them to play the “agent of reality” role. And the sections on transparency and authenticity – who we are as people – remind us of our underlying values and that it is ok to be a little nervous and vulnerable at times as we “show up fully as our true selves” in a mediation. We can be, after all, “a positive model for the people whose disputes we are mediating.”
That the chapter on substantive interventions is the longest in the book underscores the richness of its content, with many techniques shared for use in a wide range of situations. Hoffman describes his style as “eclectic” and recognises that, for some, the suggestions here may seem too directive or evaluative (I was interested in Hoffman’s definitions of facilitative mediation as “facilitated negotiation” and evaluative/directive mediation as “assisted negotiation”). Wisely, he counsels that any potential intervention should be presented “with curiosity” as to its appropriateness for the parties and their conflict and might be framed as questions to assist the parties to find their own solutions. Most of the described interventions are money-related but there are non-monetary aspects discussed too and the concluding section and story on ‘A Lagniappe’ – something unexpected and gratuitous – is heart-warming.
In the penultimate chapter on techniques to avoid, the author refers to Judge Wayne Brazil’s reminder that a mediator’s “overarching mandate is not to secure a settlement but to proceed with a visible integrity that inspires the respect and confidence of all participants.” We are not stakeholders in settlement but enablers of the making of wise choices by parties. And of course, as Hoffman writes in his concluding chapter, “settlements are, paradoxically, more likely to occur the less attached I am to achieving them.”
Overall, this is an exceptional addition to the literature on mediation and a ‘must-buy’ for any mediator (and peacemaker) who wishes to expand their repertoire of skills and techniques.
Author Biography
John Sturrock KC is the founder and senior mediator at Core Solutions. He is a pioneer of mediation throughout the UK and elsewhere with his work extending to the commercial, professional, sports, public sector, policy and political fields. He is a Distinguished Fellow Emeritus of the international Academy of Mediators and was also formerly a mediator with Brick Court Chambers in London. John also specialises in facilitation, negotiation and conflict management training and coaching for public sector leaders, civil servants, politicians, and sports and business leaders. He has worked with various parliamentary bodies throughout the UK on effective scrutiny of policy, and led a major review for the Scottish Government into allegations of bullying and harassment in the national health service in Scotland. He also founded Collaborative Scotland, a non-for-profit promoting nonpartisan respectful dialogue about difficult issues. John also has published two volumes of his book, A Mediator’s Musings (available on Amazon).