This essay borrows heavily from the fields of game theory, baseball business strategy and neuropsychology. Knitting these together, the author advocates that mediators become inciters and advocates for an outcome that solves problems, irrespective of the amount in controversy and the initial gap between offer and counter-offers of settlement. This is not an essay on how to do facilitator’s tasks in settlement negotiations; instead, the reader should consider how to think about the mediator’s role in the process, advancing the value proposition in negotiations. This essay does not propose that mediators become group therapists but instead urges them to relentlessly expose (1) the essence of each party’s intentions and purpose within the controversy, and (2) a range of satisfactory outcomes from the perspective of each party. Once that is accomplished, the second, incitement, phase may commence. In that phase, three transitions must occur. First, the concept of wounding must fade into the background while the concept of amelioration – the path of most proximate to making each party whole – assumes the foreground. In that initial transition, the warriors – those for whom the encounter’s savagery matters equally with the outcome – must be disarmed and converted into fellow seekers of imaginative solutions to the joint problems to be resolved. This requires foremost that the mediators alter the mind-set of the adversaries from the binary thinking realm. The second transition converts each party’s belief that a win is the ultimate goal to understanding that there is a problem to be solved at the lowest possible cost to him in the most expeditious manner feasible – and that such an outcome is as close to victory as he may be realizable. This transition requires moving from pragmatic to imaginative thinking about a controversy’s resolution. A realistic perspective in a controversy, while helpful, is not all-sufficient to achieving a resolution in many cases unless a third-party adjudicator intervenes and directs the dispute’s outcome. The pragmatist’s perspective, that the dispute is a transaction whose terms have been written down but not agreed to, yet, will not guide the parties down the path to resolution. The appropriate perspective sees the dispute environment as writ on a white board, the problem set forth at its top margin and the resolution schematic remaining to be written. Here, every possible solution is available for capture, evaluation and incorporation into an overall solution. The third transition relates to trust: Learning to accept evidence of trust extended by the other disputant and to extend indications of trust without expectation of reciprocity from the adversary. Adopting these attitudes will set the facilitator on the path to becoming a five-tool mediator. For the person not engaged in the business of facilitation, this essay offers a lens through which to evaluate the talent of a prospective facilitator or to gauge a current facilitator’s ongoing performance.
Michael N. Widener,
The Five-Tool Mediator: Game Theory, Baseball Practices, and Southpaw Scouting,
12 Pepp. Disp. Resol. L.J.
Available at: https://digitalcommons.pepperdine.edu/drlj/vol12/iss1/3