Jonathan E. Pearl
Mediation & Heisenberg’s Uncertainty Principle
Heisenberg’s Uncertainty Principle tells us, observers influence what they observe. A little like war correspondents, mediators cannot be genuinely neutral as regards the action. If a TV crew is present at or near where a war crime has been committed the question is always whether their presence helped prevent deaths, or actually worsened the atrocities. A mediator will impact a conflict (positive and negative, hopefully more of the former than the latter) whether s/he means to or not.
Often there is some negotiation between the parties (or their representatives) about who the mediator should be. The joint decision to appoint an individual may be driven by different agendas, but the mere agreement around their appointment is usually a significant milestone in the parties being empowered and reaching some accommodation. Where a mediator is Court-appointed (as is often the case in the US) that can also have a significant impact on the parties, and their attitude to the impending mediation. I recall a case where the Court-appointed mediator was a well-known ‘ballbreaker’. That knowledge impacted our preparation for the talks and the manner in which we approached the various offers and counteroffers that followed.
A mediator’s appointment may put a spotlight on the dispute that wasn’t there before. A large product liability insurer in a personal injury case I was once handling suddenly took more interest in settlement discussions when a mediator was involved.
And sometimes the parties’ agreeing to meet with the mediator will involve them in taking some real personal risk- for instance in whistle-blower cases. Terry Waite recalled that when he was negotiating with hostage takers in Lebanon they were genuinely fearful that he might be carrying some type of electronic device that would allow the US authorities to identify and track them.
The mediator is usually the first ‘outsider’ or neutral to meet the parties together in a setting that, although less formal than a court, is nevertheless a formal process. And the mediator’s presence can cause parties to view each other, and their representatives, in a different light.
But probably the biggest impact of the mediator’s appointment is that the parties begin to understand that the resolution of their problems lies in their hands.