Gazing out of my window at dawn, I saw a child put on her skates, sit by herself for a while and do a few breathing and stretching exercises, before hesitantly making her way to the rink where her coach joined her for laps of guided roller skating. Hand-in-hand they harmoniously glided with ease and confidence, until the coach asked the little girl to ride solo. She trembled and wobbled, and eventually found her feet. And, as she completed one unassisted lap by herself, her coach gave her a thumbs up.
In the coming days, the young skater may fall, question her abilities, and perhaps even consider quitting; and in those times, she will have to dig deep into everything she learnt from her coach to find the strength and skill to persevere.
As mediators, is our relationship with disputing parties and their lawyers similar to that of the young roller-skater and her coach? As initially hostile conversations subside into a civil dialogue, and parties are empowered to handle matters by themselves—what is the purpose of a mediator? How do we respond to such situations? Is there a sense of gratification in realising we have empowered parties to undertake dialogue on their own, knowing our invisible influence is still present, or is there a feeling of being forsaken, a sense of being left out of the climatic ending of the discussions that we helped facilitate?
Bill Marsh recently provoked the mediation community to reflect on our relevance once disputing parties gain the confidence to continue negotiations themselves. Letting go of control is not easy for those trained to believe that the mediator is always in control of the process. I posed Bill’s insights to India’s first homegrown batch of postgraduate mediation students; many were intrigued about the idea of redundancy, but others found it hard to grasp the purpose of a mediator in such circumstances. As a friend in the profession opined:
“Agreed, parties are in-charge of decision-making, but we must be part of the decision-making—or else, what’s our value? Why would they hire us again?”
In India, neutrals tend to be most comfortable engaging in a highly evaluative style of mediation; disputing parties expect their mediator to play a proactive role in guiding them to settlement. In fact, it would be rather awkward for a mediator to leave the parties to figure things out themselves, even if communication is restored and relationships mended. Mediators in India are traditionally expected to drive the parties to the drop-off point (settlement), so the pursuit of redundancy may be a steep climb.
Conversing with Bill, I came to understand how the notion of redundancy—the idea of not being required anymore—can actually be a compliment; a concrete measure of success. Especially in conflicting situations where parties have long-term relationships to rebuild and continue, being indispensable might quite be the antithesis to the purpose of a mediator. Nancy Hollett and others mention improvement in relationships between parties an important indicator of success in mediation—while ‘resolution’ may be the immediate end goal in mediation, the ‘relationship’ between disputing parties determines the afterlife of the resolved conflict. Furthermore, if resolution brings peace to the parties, the redundancy of a mediator ensures closure of the dispute—as parties are now equipped with the dialogical process to steer the relationship.
“I have splendid music, a splendid violin and a splendid bow. All I need to do is bring them together and get out of the way”Tony D’Mello’s in the Prayer of the Frog—a beautiful message to mediators that we are not the centre of attention in the dialogue; the focus must be on engaging and developing the qualities and skills of the disputing participants.
We have been preaching since forever that mediation is a self-determined process, and yet, ironically, you hear mediators say, “I settled the case”. It is understandably difficult to not take credit after mentally and intellectually exhausting oneself to assist others in a dialogue. It is fair to be proud and satisfied with one’s hard work, but another thing to boast about being the central actor in a settlement. Mediators know there is a thin line between a handshake and a shake of the head, and sometimes, despite best efforts, disputes do not resolve. Do we then say, “I failed to settle the case?” or do we choose to transfer the spotlight to the disputants and say, “the parties didn’t settle”?
Shifting the focus away from ourselves as mediators, we make provision for our legal colleagues at the table. A ‘CALM’ approach, Celebrating Advocates and Lawyers in Mediation, invites lawyers to recognise their place at the mediation—an aspect they are often concerned about, presumably because of all the attention directed to the mediator.
As Constantin-Ai Gavrila once wrote:
“the identity of the mediation profession results from the experience of each mediator in a connected world, and its development is completely bound to the users, whether existing or potential ones,”
—and so, we remain relevant. We are surely not insignificant intruders who are whimsically invited and disinvited into the lives of strangers. We do have a purpose—to be available to serve as a neutral when called upon and be willing to “adapt and flex” according to the demands of the situational context.
 Nancy L Hollett and Margaret S Herrman and Dawn Goettler Eaker and Jerry Gale, ‘The Assessment of Mediation Outcome: The Development and Validation of an Evaluative Technique’ (2002) 23 Just Sys J 345, 348
 Tanya M Marcum and Charles R Stoner and Sandra J Perry, ‘Reframing the Mediation Lens: The Call for a Situational Style of Mediation’ (2012) 36 S Ill U LJ 317