stories mediators tell_ the editors' reflections

8/13/2019 Stories Mediators Tell_ the Editors' Reflections

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STORIES M EDIATORS TELL-. TH E EDITORS'REFLECTIONS

Eric R. Galton Lela P.

In the end, the story survives, sometimes changed hy the teller,passed down from person to person with a ragged and prohahlyinaccurate attribution. Stories from the Bible or the Koran or theTanakh, folk stories of Hans Christian Andersen, stories from theTrojan War, stories ahout leaders and healers and gods, legends ofCreation Beings from the Australian Aborigines, stories ahout Alice inW onderland or Winnie the Pooh. There is a core or a heart to the greatstories that takes us to a place of emotional connection with people fromdifferent times and places and with important truths ahout humanendeavors. Stories are, in some ways, truer than truthiif we take onemeaning of truth to he factual accuracy and another to heunderstanding the nature of things at a deeper level.

Unlike the constant fiow of information and shifting events in thereal world, stories have a beginning, a middle, and an end. They capturea slice, they distill reality so that we can make sense of it.

Edna St. Vincent Benet proclaimed that music was her ram partand her only one. 2 For many, all over the world, the power and the

magic of stories is what engages, teaches, and inspires. Stories are theirrampart against the chaos ofthe world.We have felt that mediation is an important human endeavor and

that stories ahout it should he accessible. That mediation needed to he

t Eric Galton is a founder of the Lakeside Mediafion Cen ter in Ausfin, Texas. He is theImmediate Past President of the International Academy of Mediators, an adjunct professorwith the Straus Insfitute at Pepperdine School of Law, and has been a full time mediator forover twenty years. Galton's book, A Texas M ediafion Guide, won the CPR Best Book Award in

1991. He is especially proud of his wonderful five children, his brilliant wife Kimberlee Kovach,and his coUaborafion with his dear friend and colleague. Lela Love. Lela Love is Professor ofLaw and Director of the Kukin Program for Conflict Resolution at the Benjamin N. CardozoSchool of Law.

1 Isabel Allende: T ales of Passion, TED (Jan. 9, 2008), http://www.ted.com /talks/isabel_allende_tells_tales_of_passion.html ( Question: What is truer than truth? Answer: The story. ).

2 EDNA ST. VINCENT MILLAY, On Hearing a Symphony of Beethoven in THE BUCK IN THESNOW 8C OTHER POEMS 69 (1928).


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understood, to be viewed from inside the mediation room so that thepublic and mediators could understand its powerand its pitfalls. Thatis wh y we collected these stories. An d n ow , one year after p ublic ation ofStories Med iators Tell that is why we are grateful to have the scholarsrepresented in this symposium com me nting on these stories in theirthoughtful and delightful essays.

O ne of the things about stories is tha t hu m an beings extract life-shaping, practice-shaping lessons from stories. We tell the truth becauseGeorge Washington could not tell a lie after he chopped down thecherry tree. W e go the second mile because Abe Lincoln did th at to pay

a debt. The sym pos ium writersJudg e W ayn e Brazil, Professors JohnLande, Sharon Press, and Ellen W aldma n, and author and mediatorWoody Mostenare veterans of the mediation world. They have seen itall, and yet they rep ort that new stories are worthw hile, holdin gimportant lessons for them . These sympo sium writers take the t ime toshare what they learn from the stories.

Wayne Brazil shares those lessons he gleans about the abuity ofpeople to rise up in eonflict in noble ways and abou t lessons formediators the stories hold. Joh n Land e and W ood y M osten extract

lessons about and for me diation educators from the stories. SharonPress finds lessons ab out law and lawyers.

Professor Ellen Waldman importantly notes that the book ismissing storiesstories about harms a powerful proeess ean inflict.Thankfully, she fills tha t gap w ith the story she tells in her symposiumpiece.

Sinee the publieation of Stories Med iators Tell there have beeneonferenee events at whieh me diators tell stories. 3 An othe r boo k hasbeen published vth stories, written by one of the authors in StoriesMediators Tell and inspired in part by the ereation of Stories M ediatorsTelU And Riek Paszkiet, the Direetor of ABA Entity Book Con tentPublishing of the Ameriean Bar Assoeiation, reports that StoriesMediators Tell is one of the m ost pop ular book s ever published by theA B A ' S Seetion of Dispu te Resolution.

3 Por example, the American Bar Association Section of Dispute Resolution's annualconference has had two sessions on Stories Mediators Tell one in 2012 and another 2013; theNew York Peace Institute has hosted two story-telling events, one in 2012 and another in 2013.

4 JAN PRANKEL SCHA U, VIEW FROM THE MIDDLE OF THE ROAD: A MEDIATOR'SPERSPECTIVE ON LIFE, CONFLICT AND HU MA N INTERACTION (2013).

5 Id at XV

6 E-mail from Rick Pazkiet, Dir., Am. Bar Ass'n Entity Book Content Publ'g, to Lela Love(Apr. 10, 2013 11:11 AM) (on fil with author) ( Since its publication in Pebruary 2012, StoriesMediators Tell has been the top best-selling book on mediation due to its appeal to both new


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These events and this symposium underscore what may beparticularly timely not only about the book but about the symposium aswell. The present is perilous for the practice of good mediationthatis, mediation where there is potential to further human understandingand problem-solving, potential for the type of results that are reportedin many of the stories in Stories Mediators Tell.

The marriage between mediation and the law has always been acurious one. In some ways, the marriage was one of convenience. Themore bellicose law side needed its overcrowded dockets unburdenedand the more humanistic mediation side needed a market of users.Many questioned who the offspring of this marriage would resemble,and now some are surprised that the children look so much like FatherLaw.

In the past five years, the general session has been abandoned inmany venues in court-annexed mediation in the United States;mediation has focused narrowly on the legal cause of action and thedemand and response filed in court, and the process has become lawyer,rather than client, centered.7 These phenomena are more than aretracing of the facilitative-evaluative debate. The abandonment of the

general session is genetic tinkering with the core DNA of the mediationprocess. The fundamental humanistic aspirations of the mediationprocess have been suffocated by the more commercial needs of the legalsystem and a default to the most familiar adversarial framework.Mediation has become about numbers and magic tricks to arrive atnumbers.

The International Institute for Conflict Prevention & Resolution(CPR) recognized an article entitled Mediationthe NewArbitration, ^ as its winning scholarly article this year. The article

laments that court-connected mediation has transformed into anadjudicative-like process and concludes that mediation is at an

7 Leonard L. Riskin 8c Nancy A. Welsh, is That All There Is?: The Problem in Court-Oriented M ediation, 15 GEO. M SON L. REV. 863 (2008); Nancy A . Welsh, T he Thinning Visionof Self-Determination in Court-Connected Mediation: The Inevitable Price ofInstitutionalization?, 6 HARV. NEG OT . L. REV. 1 (2001).

8 Kimberlee K. Kovach 8c Lela P. Love, Mapp ing Mediation: The Risks of Riskin s Grid, 3HARV. NEGOT. L. REV. 7 1 (1998) (arguing that mediators adopting an evaluative orientation do

not fundamentally differ from nonbinding arbitrators); Murray S. Levin, The Propriety ofEvaluative Mediation: Concerns About the Nature and Quality of an Evaluative Opinion, 16OHIO ST. J. ON DIS P. RESOL. 267 (2001) (summ arizing arguments in the debate about evaluativemediation); Jeffrey W. Stemple, Beyond Formalism and False Dichotomies: The Need forInstitutionalizing a Flexible Concept of the Mediator's Role, 24 FLA. S T. U . L. REV. 949 (1997)(endorsing flexible mediation that permits a judicious use of evaluation).

9 Jacqueline Nolan-H aley, Mediation: The New Arbitration, 17 HARV. NEGOT. L. REV. 6 1,63 (2012) (lamenting that mediation has become a surrogate for arbitra tion with lawyers

ll dj di i b h l)


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important crossroads and should be reined back into its formativeconception as a collaborative, interested-based process celebrating partyself-determination.

Stories ediators Tell is a reminder of the essential spirit of themodern mediation movement. Stories had to be told about whathappened to the disputants and not what the case settled for Storiesneeded to remind future generations of mediators about the creative,transforming, and healing aspects of the process. For these stories to bepicked up and moved, by the symposium authors, into importantlessons for different audiences is an antidote to the creeping morphing

ofthe process into the new arbitration.In response to Ellen Waldman who worries that Stories ediatorsTell may neglect stories about harms caused by the mediation process,certainly the stories in the book are far more positive than negative.However, this tracks the experiences of working mediators in the field.We encounter or hear of a bad situation from time to time, but thoseinstances do not occur often. When you talk with veteran mediators,you cannot help but be impressed with their passion and commitmentto the process, decades and thousands of mediations later. Many have

stories of the courage of the participants who appeared before them.Most veteran mediators appreciate that the story is always about theparticipants and not the mediator. Perhaps future collections of storiescould feature those told by parties as well as neu trals.

Interestingly, most mediators also cherish their relationships withthe lawyers they work with. As legal education has focused more onmediation, negotiation, and arbitration, the new generation of lawyershas a better understanding of dispute resolution and its different skillsets. However, since dispute resolution courses remain largelysupplementary in most law schools, some students leave law school withno dispute resolution skills or understanding. We will need to havelessons from scholars and educators, like those represented in thissymposium, trickle down into the law school curriculum so that thevision and passion ofthe mediation movement remains alive.

Is the abandonment of the general session a sign of a permanentmutation which will eliminate the essential humanistic goals ofmediation? W ill there be continuing dialogue between the law side and

mediation side to explore the benefits and possibilities that themediation process presents? Will there be new stories mediators telltwenty ye rs in the future?

Hopefully, the rich stories in Stories ediators Tell wiU beinspirational reminders of the power ofthe process and the passion thatinspired the mediators that shared these stories. And the pieces in thissymposium will standas a challenge to educators parties lawyersand


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mediators of the importance of continually extracting lessons from thephenom ena around us and passing on the lessons to future generations


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C o p y r i g h t o f C a r d o z o L a w R e v i e w i s t h e p r o p e r t y o f B e n jY e s h i v a U n i v e r s i t y a n d i t s c o n t e n t m a y n o t b e c o p i e d o r e ma l i s t s e r v w i t h o u t t h e c o p y r i g h t h o l d e r ' s e x p r e s s w r i t t e n p e p r i n t , d o w n l o a d , o r e m a i l a r t i c l e s f o r i n d i v i d u a l u s e .

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