This is my second post on various thoughts that I had while reading the media reports about the murders during a settlement conference in Phoenix, Arizona, part one can be found here.
The Problem of Terminology:
After I learned of this shooting, I tried to determine what happened. I started thinking about what kind of mediation was it? How did the parties end up in mediation? Was it actually mediation or something else?
As a mediator, I am regularly frustrated and disappointed by the lack of knowledge the public has about my profession. Mediation is constantly confused with arbitration. These are two drastically different processes! The media coverage of this tragedy makes the confusion clear.
It appears that Harmon, Singer and Hummels were participating in a settlement conference over which Schwartz had been appointed to preside. However, the Arizona Republic reported that they were in the midst of an “arbitration meeting”. Other news sources have reported that they were participating in a mediation conducted by Schwartz.
Mediation is radically different from Arbitration. Arbitration is a binding process of resolving a dispute that can be similar to litigation, but occurs outside a formal court system. The parties usually agree in advance on the arbitrator and agree to be bound by the arbitrator’s decision. In contrast, mediation is an informal process where an impartial third party, the mediator, works with the disputants to resolve their problem(s). While the mediator assists the disputants in identifying the problem and potential options for its resolution, each disputant speaks for themselves and makes their own decisions. The mediator does not make decisions for the disputants, provide any legal advice, or recommend the terms of an agreement.
In short, in arbitration, you defer to the judgment of another to solve your problem. In mediation, you decide for yourself with the help of someone else. Yes, both processes share a ‘third party neutral,” but the roles are completely different. The two are apples and oranges. Until the public understands this distinction, we will continue to suffer from this misapplication of the terminology.
In this case, there is no clear explanation of what exactly happens in a settlement conference and how that is similar or different it is from arbitration or mediation. What were Singer and Harmon expecting when they arrived to participate in the settlement conference? Arizona is one of the few states that uses a Judge Pro Tem to conduct settlement hearings. Why use a temporary judge who is unfamiliar with the case to conduct the hearing? The questions are numerous but the theme is constant.
I have no idea how Schwartz conducted his session. Was more like an arbitration or a mediation? Something in between? I do not wish to know the answer to these questions nor do I encourage others to guess. What I do wish for is truth in advertising. Unless the public understands what they are participating in, they will be unprepared to fully benefit from the process.
There is a desperate need to clarify the services we offer and how they are different from other similarly named services. Part of the reason I chose to join the Texas Conflict Coach podcast was to help educate the public about the field of conflict resolution. If you are someone looking for a mediator, ask them what to expect if you select them to mediate the case. If you are a mediator, please be honest in how you conduct your session. Folks should know what to expect. If we can do these simple things, it will greatly benefit us all.
Thank you for your article on the Arizona killings. As a long time neutral, I appreciated your clear and concise explanation of the differences between arbitration and mediation. I believe we, when acting in the capacity of mediator, have a duty to explain to disputants the difference between arbitration and mediation. After nearly 20 years acting in both capacities, I am always surprised when participants in mediation say to me ” you aren’t going to resolve this dispute” and I say “no” but I’ll help you figure out how to resolve it yourselves! Once they get over the shock, participants work very hard in achieving good outcomes.
Again, thanks for the article.
Thank you for your comment. Until we can clearly and concisely explain our services the public will continue to be confused. The definition of settlement conference used by the court in this case could easily be confused for mediation. In an interview with a local attorney who dealt with Harmon before, the settlement hearing was characterized as an arbitration. An arbitration is definitely not “a pretrial meeting between the parties, in an attempt to settle issues and avoid trial.” It’s no wonder there is so much confusion in the media about our services. If we cannot in simple and common language discuss our services we will continue to face these challenges.
All the best,
Stephen, Thank you once again for your contribution to our profession. You did a great job on this article. (Actually, we plan on using it at an upcoming training as a spring board for discussion. My hope is that my students will then post their comments to this blog.) I agree with just about every thing you have said here. To a great extent I blame our professional organizations for our failure to properly educate the public and the politicians about what mediation is and how it can best be used. I believe that until our professional organizations get on the band wagon and bring PR professionals and lobbyists on board we will continue to remain in the shadows of the community consciousness. Best, Elinor
Here are the comments from our Feb 17, 2013 CME (Program B-2013) Workshop. We had some technological limitations so my idea of having students comment directly on the blog, in real time, didn’t work. But, the discussion was passionate and insightful. Here is my take away:
1. The mediators felt this was really two totally separate articles: One that deals with the AZ incident and one that deals with the lack of clarity that exists surrounding ADR practices.
2. They didn’t understand your empathy for the mediator. He is still alive. Yes, he had a bad day but the other two are dead. (They didn’t like the “especially to Ira Schwartz.”)
3. They want the mediator to discuss the case. This is an example of when confidentiality serves little purpose. We can all learn from the mistakes made here and in order to avoid a repeat my mediators wanted to hear a re-cap from Mr. Schwartz. Where does he think he went wrong? How can others avoid his mistakes? To my knowledge Mr. Schwartz is still silent on the case. Is this correct or have I missed it?
4. Finally, from a somatic perspective, we discussed what happened in the body of the shooter. Some of my mediators believe that during the mediation session he was pushed off the emotional edge he had been on for a while. What happened during the mediation to get him to this place? In the case sited by the Arizona Republican, workplace violence consultant Carol Fredrickson’s son had concerns about Harmon and acted accordingly. Did no one in this case have concerns? Did all three of them miss the clues?
5. Mr. Schwartz has an impressive background in finance. He was not, however, the right mediator for this case. This case needed someone with mental health training. Harmon was not processing in his cerebral cortex. He needed someone who could deal with a angry man acting out from his reptile brain/limbic system. Schwartz was not that mediator. In fact, we surmised that the events at mediation probably pushed Harmon further into fight or flight survival mode. The mediation process and his interactions with the other three men left Harmon feeling even more dismissed.
6. Dont do business with crazy people. Avoid them at all costs. Instead, seek out those who are emotionally mature.
7. What can we, jointly and as individual practitioners, promote the mediation agenda and teach the public the differences in the available processes?
We will be discussing the article with another group of mediators this Friday. I will keep you posted. All the best, Elinor
On Friday, March 22 a second group of mediators discussed this article. If at some point you decide to revise this version of the article they suggest you add headings. Otherwise, this group had more questions than answers. Here’s what they had to say:
1. As a mediator how do you evaluate the people in front of you? A self-represented “frequent-flyer” plaintiff is a tip-off for problems. It is probably good practice to google and/or check the county records prior to mediation, to gather information about the parties. What else can we do to gage violence potential before mediation begins?
2. The perpetrator had a long history of disputes but nothing had previously resulted in violence. Why was this time different? How was he triggered? As mediators it is easy to fall into the people pleasing trap, especially when one side is powerful and connected. Did the mediator and the lawyer for the defendant have a prior professional relationship? Did the three men smirk, mock, or belittle the plaintiff and his case? We will likely never know the answer to this question but it could explain why the defendant snapped.
3. How can we learn to be more situationally aware and use peripheral vision?
4. How can we use this incident in the debate surrounding gun control and access to mental health services?