My mediation story started very early. As a child I was one in a large family of siblings. There were seven of us. To make it worse for me, I was surrounded by twins. Let me clarify. My older brothers were identical twins and my younger brothers were fraternal twins. That made me, one brother and sister, "the singles." We were outnumbered and outgunned by a phalanx of twins. As one can imagine, battle lines developed between singles and twins. Conflicts between the singles and the twins arose on the regular.
In one particular conflict, my 5 year old single brother got into a heated fight with the identical twins. This rarely ended well for the singles as identical twins always outnumber the singles. More importantly, they fight as one and every conflict is a two for one special. Things got heated and the twins (not above fighting dirty) got the upper hand and the cherry on top of this particular dust up was that one of the twins chomped down and actually bit their single brother — resulting in tears, a small trickle of blood, a deep sense of violation in the bitten brother.
Camouflaged by their identical genetics, the victim could not definitively identify the biter — which only increased his sense of outrage and victimhood.
The dust up came to me as the court of equity to untangle the versions, identify the biter, and administer justice. I asked the twins to tell me who the biting offender was. They took the 5th and neither would answer on grounds that the answer would incriminate them. They both denied the bite. I asked the single victim, "which one of them bit you?" Camouflaged by their identical genetics, the victim could not definitively identify the biter, which only increased his sense of outrage and victimhood. In a burst of frustration, the bitten brother exclaimed, "They're BOTH lying!"
Such is life in the world of mediation. Competing parties, wildly disparate versions of factual disputes, amplified versions of damages, and often truly consequential and life changing harm done that sometimes money can't remedy. The lesson from my childhood still guides my mediation work now.
Parties need to be heard and their issues understood before they are in a position to heal. Maintaining neutrality is vital to the mediator's credibility and ability to resolve. Equally important is diagnosing what interests each side is protecting in maintaining the dispute. Is it saving face? Financial concerns? Credibility? Or a perception of what particular justice means in a unique dispute. All of these issues could be the gap between a dispute and a resolution. Figuring that out is key to reaching a resolution.
Returning to my childhood donnybrook, on that day, there were no clear answers coming from the parties. But there was something all of the parties wanted. Ice cream. My remedy on that day involved mutual apologies, topped off with ice cream for all. Sometimes mediation involves everyone getting it off their chest and an apology for the other's experience. And sometimes, ice cream helps.