The Reflexive Mediator

This article describes a reflexive approach to mediation that can be taken by mediators, which I see as a promising corrective to two positivist ideas in the field of mediation that are slow to fade: that we should be neutral as third parties and that parties should seek solutions based on objective truth that can be verified and measured. Grounded in a more constructionist qualitative social research approach and drawing analogies from that approach that can be applied to mediation, a reflexive praxis builds on the argument that a third party cannot be neutral, and therefore striving to be so is a wasted effort (Rifkin, Millen, and Cobb 1991; Benjamin 1998; Mayer 2004). Rather, third parties are themselves part of an interpretive and intersubjective process in which “truth” is co‐constructed. Because in many ways the field of mediation has been built on the ideal of a neutral, objective third party, what is the field without it? And what can replace it?

A reflexive approach to mediation, among other things, offers one answer to the plaintive lament that “[m]ediators face a conundrum — they cannot ‘do’ neutrality, nor can they do without it” because disputants expect it of them (Astor 2007: 221). Other scholars have gone so far as to refer to “the mythical nature of neutrality” (Zamir 2011). Bernie Mayer (2004) has suggested that it is time for the field of mediation to get “beyond neutrality” because neutrality silences mediation's authentic voice — passionate and engaged — and retards the field's development.

Other mediation theorists have argued that “omnipartiality,” a term coined by Kenneth Cloke (2001: 13), and “multipartiality,” which is often preferred, are more appropriate to the spirit and practice of mediation. I agree with these critiques and directions. But these responses are more or less focused on the disputants and not on the personal biases, preferences, and subjectivity of the supposedly neutral third party. I have taken, therefore, to calling for “disciplined bias” in which we, as third parties, strive to be highly self‐aware and alert to our own reactions to those whom we mediate. Along these lines, Daniel Bowling and David Hoffman (2000) refer to the mediator's “presence” in the room and his or her parties’ awareness of it. This awareness of the mediator's presence, including her affect, biases, and perspectives, echoes ideas found in a growing literature exploring “mindfulness mediation” (Riskin 2004; Brach 2008; Kuttner 2012).

What responses, feelings, and attitudes do the parties and their conflicts, demeanors, personalities, and approaches stimulate in us as third parties? Can we become deeply aware of the limitations of our own perspectives and use that awareness to gain deeper understanding, through a kind of active “mindfulness” in which we become the objects of our own scrutiny and curiosity? Can we learn why we as mediators are reacting in particular ways? How does it affect the dynamics of the mediation when we express our reactions? What happens when we suppress them? Am I suggesting the adult version of “counting to ten” when I note in myself a reaction and bias and ask myself: how should I proactively determine the most mediation‐positive way to deal with that bias? For example, should I silence it? Should I acknowledge it and make it part of the mediation process? In short, first I must know what it is and then determine what to do with it — why, when, and how. This is the way of the reflexive mediator, or the mediator who practices “from the inside out.”

Reflexivity, as I use the term here, refers to an interactive process that takes into consideration the relationship between self, other, and context.¹ This reflexive process entails engaging in the moment as well as noticing and, as much as possible, understanding one's thoughts and feelings during an encounter with the parties in a certain time and place. Engaging in this process helps the mediator expand her or his frame of attention from a primary focus on the parties and their conflict situation to also consider how he or she encounters those parties, and what are the underlying assumptions and priorities that shape their mediated interactions.

To date, mediation theorists have devoted little sustained attention to reflexivity as a potentially powerful tool of the trade. Recent exceptions include Vibeke Vindeløv's Reflexive Mediation (2012), and Hilary Astor's article on mediator neutrality (2007). Astor argued that reflexivity has value as an alternative to neutrality, although she advocated for it mainly as a preparatory method for the mediator. She suggested that mediators develop reflexive skills through mediation training, which can help mediators learn to uncover and understand their own biases. In this way, I suggest, they can exercise real choice over what to do about this bias. Without this awareness, they cannot really be said to be making choices (Rothman 1989). The choice may well be to “quiet” this bias (e.g., repress it) so it does not “interfere” with the mediation process, but other times surfacing it may be an appropriate tactical choice in order to raise important issues. This awareness development is essential in mediation training, and the reflexivity I describe here is used during mediation itself by the mediator in relation to himself/herself, the parties, and the context. And perhaps most importantly, the process incorporates bias, subjectivity, and narrative as keys to meaning‐making and discovery that often constitute a major part of the mediation process.

Reflexivity has been well developed as a methodology in a different arena — qualitative research (see Hertz 1997 and Finlay 2002) — and insights from its use there can, I believe, be usefully applied to mediation. It is not a far stretch to analogize the mediation process with some forms of qualitative research (e.g., action research) in which researchers, in part by being explicit about their own agenda for social change, can help those they study articulate the constraints, challenges, and opportunities they face in pursuing constructive change (Dobson 1989).

In qualitative social science research, in which reflexivity has been discussed and used extensively, a general definition of reflexivity is “reflecting upon and understanding our own personal, political and intellectual autobiographies as researchers and making explicit where we are in relation to our research respondents” (Mauthner and Doucet 1998: 121). It is also “often understood as involving an ongoing self‐awareness during the research process which aids in making visible the practice and construction of knowledge within research in order to produce more accurate analyses of our research” (Pillow 2003: 178). In short, positivism in social sciences is challenged by the reflexive process in which research is seen as a co‐creative and intersubjective process (Bourdieu and Wacquant 1992). Mediation, particularly in cases of emotionally laden and identity‐based conflict (Rothman 1997 2012), would, I believe, benefit from a similar development. If we substitute “mediators” for “researchers” and “mediated parties” for “research respondents” in the above quotes, the parallels between the need for self‐awareness in qualitative research and mediation become clear.

Following are some key similarities between qualitative research and mediation:

1. Both researchers and mediators are plagued by the need to be perceived as “unbiased,” “neutral,” and “detached” to legitimize their work, although they recognize this might be quite impossible, and not always helpful (Gibson, Thompson, and Bazerman 1996).

2. Both researchers and mediators must be highly aware of their impact upon participants during the research/mediation process and must determine whether this impact is helpful or detrimental to achieving their research/mediation goals.

3. The need for reflexivity in social science research arises from the way that research is often affected by and engages with factors such as power, gender, ethnicity, and class. This speaks to core concerns in mediation as well (Gerami 2009).

This increasingly used method for addressing researchers’ biases and their influence on respondents in qualitative research offers, I believe, a sound approach for addressing similar dilemmas in mediation.

When I look at myself through a glass darkly (say at sunset) — I see myself seeing out. This experience of being at once the observer and observed is similar to William Ury's (1993) notion that the mediator stands on the stage and on the balcony simultaneously. Visualizing yourself as you engage in the process is both the key inquiry of the reflexive researcher and I believe a good model for the mediator and also for disputants themselves. Who is the “I” who sees the other? Who is the other I am seeing as I see myself see? And who sees me seeing him or her? These questions, which may be constructively organized around and often stimulated by deep conflict, provide a pathway to deep insight, learning, and, depending on the situation, to a possible resolution of the conflict (see Rothman 2012).

Mediation often involves helping parties understand each other's perspectives. While agreeing with each other about everything is neither possible nor ideal, being able to understand, at least to some extent, what the other person thinks, feels, and believes — and why — is key. Below, I describe one such case drawn from my own experience as a reflexive mediator using my own reactions to help two hate‐filled enemies hear themselves anew in the voice of the other.

When enlisted as a mediator in a conflict that was tearing apart a department in a large public organization, I quickly learned that “Carrie” and “Milt” were reacting not only to their own perceptions of each other's actions during a particular event (an encounter during a picnic gone bad), but also to profound and tangled emotions that sprang from their respective life experiences as a white woman and as a physically large black man.

My initial interviews with each of them left no doubt in my mind that their antipathy toward each other was extreme: each used the word “hate” in speaking about the other. They told me they had avoided direct communication for the previous two months, even though they were required to attend staff meetings and work together almost daily in their small, ten‐person department. This mediation was one of the more powerful, and fraught cases of my long career. And no matter how many conflicting parties I guide through conflict, I will almost inevitably come to a point when I think to myself, “Maybe these two people — or firms, or organizations — are simply and utterly incapable of understanding or behaving civilly toward one another. Maybe this is beyond me, maybe I'm ill‐equipped, maybe … it's hopeless.”

As I slowed down my reactions and reflected on my own growing despair, I was able to enlist that feeling — much like many actors do when embodying a character — to understand how despairing and trapped in a vicious cycle the parties themselves must have been feeling.

“Shall we give up?” I asked, both reflecting the despair of the parties while, I hoped, simultaneously suggesting the possibility of progress. Milt, whose only contributions until that moment had served to antagonize his counterpart Carrie, seemed alarmed at my suggestion. “Do you think we have to?” he asked. I said that unless they would at least try to proceed differently, I did not see much of an alternative. What did they think?

“I think I know what you want, but why should I?” Milt asked. “She has done this to me. I'm struggling to keep myself standing, so why should I give her any more ammunition to hurt me with?”

Carrie replied, “Exactly. I don't want to be any more vulnerable than I already am.”

Using a paradoxical intervention, I told them they both had the freedom to exit, “You shouldn't continue unless you want to.” I also suggested that the costs of either maintaining the status quo or disengagement could be high. “But I also know that unless you do something different from what you've been doing — blaming each other for everything — nothing will change. And perhaps things will get worse between you and for your department. Can you, even for a moment, stop blaming each other and talk about yourselves, your own experiences, fears, and hopes?”

What followed was the reflexive voice I'd been hoping for, as Milt and Carrie slowly, reluctantly, painfully, began to discover similar feelings, concerns, and fears:

Milt said, “Okay …” He paused, and said quietly to Carrie, “You scare me to death.” He said with a tremor in his voice. “Whether you meant it or not,” he said, “I have experienced what you said to and about me as challenging me as an individual; and I can't help but recall experiences of my people being lynched for looking at white women …”

Carrie was visibly moved by Milt's statement. Her voice also shook as she said, “But Milt, I'm scared of you … and I deeply do not want to be.”

This is where it happened — an almost imperceptible “switch” in which Milt and Carrie saw one another as if, for the first time, authentically as subjects in encounter with one another, instead of as objects of blame. Before that moment, each held images of the other that were negatively framed by their own complex perceptions of themselves and by challenges each had experienced, respectively, as a woman and as a black man. What happened in that exchange was profound. Clearly, it marked a turning point as Milt and Carrie began to see the relationship and themselves anew from each other's perspective.

The reflexive approach to social science research involves seeing oneself as “simultaneously being the observing subject and the observed object, a process that includes both self‐knowledge and self‐monitoring” (Pagis 2009: 266). Such reflexive knowledge, when used in practice, can help the mediator “discipline” his or her bias, uncover that bias as it arises in the mediation process, and, in that moment, discern whether that bias will obstruct the process — or whether it can, in contrast, be used to support the process. “Reflexivity depicts the ability to direct one's thought back onto oneself; to examine one's theories, beliefs, knowledge, and actions in relation to clinical practice. The interpretations of experiences, and insight into how one's interpretations came into existence, results in reflexive knowledge” (Barry and O'Callaghan 2008: 56).

One key to the art of reflexive mediation, particularly for deep conflict situations where its use may be most needed, is for the mediator to become an effective “character actor.” When I trained as a mediator, Wayne L. Horvitz, a master labor mediator and former director of the United States Federal Mediation and Conciliation Service, gave me invaluable advice. “If you want to become a great mediator,” he said, “learn to become a good actor.” Such an actor, schooled for example in the Stanislavski method‐acting technique, will find the emotional, psychological, and historical depth of the character within himself or herself (see Hagen 1973). By looking at one's own life and experiences (even if they are far different from those of the character being played), one learns to empathize with the characters in, for example, William Shakespeare's Othello: the cruel cunning of Iago, the anguish of Desdemona, or Othello's descent into insanity and rage.

The Stanislavski method actor assumes the stance of the “not not me,” in which he or she plays a part both beyond but not separate from his or her own identity and reality (Schechner 1985). In taking on a role, I am not acting as myself, but in taking on the role authentically, I draw deeply upon myself. I am not me when I am the raving Othello, but I capture his rage in my own heart and experience. Thus, I become the not‐I that is‐I, or the “not not me.”

The concept of examining oneself from an intellectual and emotional distance is explored in mindfulness practice, which has some important, albeit paradoxical, similarities to the practice of reflexivity. Through mindfulness, one may become deeply self‐aware of one's thoughts, feelings, and reactions by examining them in a detached way. Leo Smyth (2012: 49) wrote the following about mindfulness in mediation:

And Darshan Brach (2008: 30), also writing about mindfulness mediation, described “… an additional level of awareness in which we can simultaneously experience phenomena and observe ourselves experiencing it. … With this ‘observer's perspective,’ rather than simply reacting to our fearful thoughts about the outcome of the negotiation or our unconscious judgment … we can decide how or whether to act on those thoughts.”

When I mediate, my ideal is to achieve a kind of resonance with the disputants. I experience this as a kind of sympathetic “vibration” when, at least analytically, I empathize with their perceptions of their experience.

For instance, in a divorce mediation, I might be aware that I identify with the husband and view him as the underdog because of my perception that he is less likely to receive custody of the children. After I recognize this bias and admit it to myself, I realize that I must balance it. Turning my attention to the wife, I seek to see her side and why she seeks full custody; in a way I seek to “act” her role internally, by becoming the “not not me” and trying at least momentarily to view the situation through her eyes. Thus, having both articulated my own bias to myself and raised it to a level of self‐conscious scrutiny, I “discipline it” by trying to balance it by taking perspective of the other side, just as I hope the parties will eventually be able to do with each other.

As a mediator, I seek to deal reflexively with the mediated parties’ hurt, fear, and anger, with the ways they express their views — even with the ways they might challenge me and my role. It is not uncommon in my experience as a mediator — and I know in others’ as well — that parties turn their wrath on me because they perceive me as biased, cold‐hearted, or incompetent. In psychotherapy, such expressions of anger or disappointment directed at the therapist are often viewed as “projection” and considered to be a sign of potential progress — certainly of engagement. This is not uncommon in mediation as well, at least in the kind of emotionally challenging cases I often mediate. It is not easy to hear a party tell you that you are failing as a mediator and not respond defensively or reactively (or perhaps worse, lose confidence or face in front of the disputants). Instead, we try to probe such remarks to seek deeper insight into parties’ perceptions and generate ideas about the best ways to move forward in the mediation. In short, when a reflexive mediator is in the mediation flow, he or she should be able to take seriously the parties’ expressions of mistrust and dissatisfaction and become “not not me,” watching his or her own reactions before expressing them and determining how best to respond — even if he or she only has a split second to do so.

The following case illustrates such an encounter. Two business partners were in conflict: one had given the other a loan, and the latter had later asked for flexibility in repaying it. But the lender refused to make any concessions on the first terms of the loan, so the partnership was being dissolved, which would most likely cause the loan to be defaulted through bankruptcy. They came to me for mediation. As they spoke, the gap between their positions grew even wider, and blame and recrimination ensued. They then began to question my competence and expressed growing mistrust and doubt in me.

After the initial jolt to my self‐esteem, I understood that the sides were, at least in part, projecting their mistrust of each other onto me and that I could use that. I was able to come to this understanding because I slowed down my immediate “fight or flight” reaction (“they just don't get it” or “perhaps I messed up”) and analyze the situation reflexively as “not not me.” I said to them, “Let's look at the level at which you are relating with me — mistrust. If I have done something to cause that, I would like to hear more about that and see what I can do to explain or correct that behavior going forward. But instead of just talking about this in relationship to me, let's broaden the focus and see if this might usefully frame our discussions now. What if instead of talking about money, we talk about trust?”

I then, by example, described how I felt when I was trusted in my work, how fulfilling and empowering it was and how challenging it was to my own sense of myself and my professionalism when people doubted it, as they just had. Turning to the lender, I said, “From what I've heard now it seems that you don't trust him, you think he does not intend to do everything he can to return the loan. What does trust mean to you? Why is it deeply important to you?” Not waiting for an answer, I then turned to the borrower and asked, “What is your feeling when you are taken at your word? How about when your word is doubted?”

Clearly this was a high‐risk, or “dangerous,” move (Cloke 2001), but it worked. I find using myself as an instrument in mediation often does. The reframing and new focus led us to a more productive dialogue, and ultimately the parties grew to trust each other and to reach an agreement to cooperate in the future.

When the parties stopped blaming each other and arguing over money and began discussing the core issue, trust, the partners understood that the loan was merely a symbol — and perhaps even a distraction. The conversation flowed more easily. At one point, the lender offered to buy the other out, an idea the borrower “did not like.” As time was running out, I suggested that we either meet again or the parties could decide the mediation had failed and seek lawyers. The borrower turned to me and asked, “Could you leave the room for five minutes? I want to speak to my partner directly now.” Impressed by his initiative and by his use of the word “partner,” I left the room feeling more optimistic. I was rewarded when they called me back in with smiles on their faces and said, “We have found a way forward together.”

As this case demonstrates, the insights of reflexive mediation begin first with the third party who models and then ideally transfers it to disputants. Therefore, the first thing reflexive mediators must do is make peace with conflict themselves. Too often, an urgent need to solve the conflict — perhaps arising out of mediators’ own discomfort with it — can lead third parties to collude with disputants to rush headlong into problem solving or solution‐seeking. The reflexive mediator's job is to bravely engage conflicts, displaying a balanced approach between the biologically conditioned extremes of flight and fight. As Bernie Mayer wrote, the job of the third party is often to help disputants “stay with conflict” (Mayer 2009), meaning we ourselves should not be overeager to dispense with it. Such a mediator can achieve this balance between conflict avoidance (too little direct engagement with the conflict) and conflict overload (too much direct engagement with the conflict) by gaining and displaying exquisite comfort and fluency with conflict in its various forms.

Indeed, the reflexive mediation process embraces conflict and contradiction as an opportunity for genuine encounter. In mediation, as in art, creativity often emerges from friction, confusion, and contradiction — and engagement emerges from a previously antagonistic standoff.

After each party has explained how he or she sees the conflict, I then encourage them to tell stories about what the conflict has meant to them, describing both its negative impact and what values, needs, passions, and purposes are at stake, and why changing the situation is so important to them. What makes such reflection “reflexive” is that the parties are encouraged to focus on the subject of themselves and not on the other party. Parties in conflict tend to blame, attribute, polarize, and project. The mediator asks the parties to shift from statements focused on the other party's responsibility (e.g., “you have hurt me”), which puts the other party on the defensive, to statements focused on their own experience (e.g., “I have felt hurt”).

After the parties tell their stories, the mediator, reflexively trying to see each side's point of view, “retells” the story in a way that respects the experiences of both sides and enables them to view “the other” in a new, more interconnected way. The mediator may even invite and coach the parties to do this themselves.

When parties hear that the other side is motivated by hopes and fears that often resonate with those of one's own — as occurred between Carrie and Milt — a new and potentially unfreezing “analytic empathy” may emerge between them.

The term analytic empathy, or what has also been called realistic empathy (White 1984), cognitive empathy (Gladstein 1983; Shamay‐Tsoory, Aharon‐Peretz, and Perry 2009), and perspective taking (Galinsky and Mussweiler 2001), connotes something different from the more conventional affective or emotional empathy. Usually empathy is thought of in terms of emotions. But for opponents to begin to view each other as partially similar does not require that they emotionally empathize or even trust each other. In fact, emotional empathy between opponents in group‐based conflicts can even be damaging, as it may delegitimize them in the eyes of their own group members. But analytic or cognitive insights about similarities between oneself and the other can help “unfreeze” opponents’ assumptions that the other is automatically and irrevocably an enemy (Lewin 1948).

Such understandings can enable parties to see that adversaries, like themselves, are deeply motivated by shared human concerns, and that unless these are fulfilled conflict will be perpetuated. As parties begin to see their similarities to their enemies — their similar motivations, fears, and needs (for safety, control, identity, etc.) — enmity may diminish and the “us vs. them” split breaks down, replaced by “a construct that defines all others as at least partially like‐self” (Northrup 1989: 80).

In a metaphor like the one I used to open this essay, Kenwyn Smith and David Berg (1987: 171) described the process this way: “When two interacting groups use each other and their relationship as a looking glass through which to discover characteristics of themselves that are being mirrored back to them, the conditions of self‐reference are created. If, in addition, they use each other as repositories into which they put parts of themselves that are disowned, then each reflection back from the ‘other’ is a reflection from a ‘self’ that has been displaced into the other via projection.”

Reflexive mediation begins with the following premises: that the mediator enters mediation with his or her own set of experiences, emotions, and biases; that his or her emotions and biases are activated by the conflict and the disputants; that a failure to recognize these biases and responses could diminish the mediation process; but that when properly acknowledged, these emotions and attitudes can be reflexively harnessed by the mediator to enhance the mediation process. By engaging in this process, the mediator uses reflexivity as a tool to enhance self‐awareness and foster disciplined bias, and is able to advance the mediation process.

Through reflexivity, becoming the “not not me” in relation to oneself, the parties, and the conflict, the mediator — and through the mediator's efforts, the mediated parties — can gain a more nuanced view of the conflict and a better understanding of the other party's needs, values, and identities. The reflexive mediator achieves this both by demonstrating reflexive behavior himself/herself and by encouraging it in the parties. Ideally, when reflexive mediation succeeds, parties will discover more about each other and themselves, and will develop the will to turn their conflict into a process of collaborative learning and constructive change.