The Law School Magazine  ·  Winter 2014 : Departments

The Middle Voice: Mediating Conflict Successfully (Carolina Academic Press, Second Edition 2013) By Joseph Stulberg and Lela P. Love

By - Winter 2014
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Conflict is inescapable. Although a lawyer is often called upon to formally mediate a legal controversy, many people assist others to resolve their disputes by skillfully and effectively using facilitating skills and strategies in their role as supervisor, co-worker, parent, organizational leader, or community activist. The question is not whether you will mediate. The question is: How well will you do it?

The Middle Voice, co-authored by Joseph B. Stulberg, the Michael E. Moritz Chair in Alternative Dispute Resolution, and Lela P. Love, professor at Yeshiva University’s Benjamin N. Cardozo School of Law, provides a theoretical framework and prescriptive strategies for successfully mediating conflicts. Particularly in this era of polarized tensions and escalating conflict that leads many people to believe that conflicts are intractable, the lessons from The Middle Voice affirm that it is possible for skilled dispute resolution interveners to help disparate, passionate parties in individual or group settings negotiate actionable agreements constructively and fairly.

Mediation promotes three primary goals: assist disputants with improving their understanding of their situation and one another; engage in problem-solving efforts; and find acceptable solutions. Unlike a judge or arbitrator, the mediator has no authority to impose a binding decision on the disputants. With respect to acceptable solutions to the controversy, in the jargon of the alternative dispute resolution field, the dispute and its resolution belongs to the parties.

The authors provide a targeted description of each of the mediator’s important job responsibilities, including one’s role as: chairperson, communicator, educator, resource expander, agent of reality, guardian of durable solutions, scapegoat, and protector of the process; they then identify and discuss 20 personality traits that are relevant to a person performing those tasks effectively.

With that background, the authors set out – using the pneumonic device of BADGER – the specific components of a mediated conversation:

 Begin the discussions.

Accumulate information.

Develop the discussion strategy.

Generate movement.

ELECT* separate sessions.

Reach closure.

For each element, the authors identify the required mediator responsibilities and the choices one makes when executing them. Stulberg and Love then provide detailed examples in multiple contexts to illustrate how such mediator behaviors operate in practice.

For this second edition, the authors added a new chapter on diversity. “On many occasions, when people engage in conduct that generates misunderstanding and conflicts, their actions are importantly shaped by the distinctive practices and values of their various identity groups,” the authors wrote. The new chapter identifies the challenges that human diversity presents and demonstrates how the BADGER framework can be used to work through them.

In their concluding comments about mediation, and their hope for the lessons of their book, the authors offer the following observation and challenge: “Mediating well is not easy; it is a complex process with many variables. But this multiplicity of factors does not reduce mediating to an art form in which anything one does is acceptable or for which one must have an inborn talent. There are ways to prepare, duties to perform, and a structure to develop; there are options for trying to persuade parties to change their position and procedures for bringing discussions to a close. People can execute these responsibilities brilliantly or ineptly. They can also sharpen their skills in performing these tasks – they can become better at mediating.”

*ELECT stands for: expand the information base and settlement options, lessen intransigence, encourage evaluation, confirm movement, and take a “time out.”