‘Shepherding the Conversation to Safer Ground’

Geoff Sharp today in mediator blah…blah:

I often see folks in mediation dodging a question they would rather not answer. I’m frequently surprised that they are not picked up on it and get away with shepherding the conversation to safer ground.

In transformative mediation, the use of questions is a tricky area.  What makes mediation distinctive among dispute resolution mechanisms is the self-determination of each of the parties — in many other forms of dispute resolution, a third party, outside the conflict, imposes a decision on the people involved who, often, haven’t had a chance to speak up except through intermediaries.  In mediation, the parties retain their own ‘voices’ and get to make their own choices.

How far does this principle extend?  For the transformative mediator, the principle goes, as it’s said in French, jusqu’au bout, right to the end.  Parties are treated as responsible agents, who have the right to make their own decisions as to what they talk about and how they talk about it.  This value holds as much for the mediation process itself as it does for the subject matter of the conflict.  Anything less invariably colours the mediation procedurally or substantively with someone else’s decisions, i.e. the mediator.  Depending on their content, mediator questions have this potential.

As autonomous agents, parties have the right to their own decisions, even those they may come to regret later and even those others may view as irrational or unfair.  There are plenty of other dispute resolution processes that can guarantee ‘just and fair settlements’ that often satisfy no one involved.  Mediation, the transformative approach to it at least, can guarantee ‘voice’ and ‘choice’.

Unlike Geoff, my concern, with all due respect, relates to mediators who shepherd the conversation to their choice of where it should go, instead of following the parties wherever they want to take it.

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