“I don’t know.”
When I was a litigator, I avoided these words like the plague. After all, after hundreds, if not thousands, of hours billed on a case, clients expect lawyers to know most things, or rather, everything about the case. Even when I really didn’t know the answer to a question, I’d somehow manage to formulate a response that incorporated an acceptable explanation for my present lack of knowledge and a plan to become knowledgeable imminently.
Early in my career, I had the honor of clerking for a remarkable federal judge who would often say that his goal was to “teach law school out of me.” In the same way, I’ve viewed this mediation fellowship as a way to “teach litigation out of me.” There are many aspects of my litigation training that I have had to unlearn as a mediator, like advocating for a specific legal position, asking questions in order to obtain a certain desired answer, and being tied to a singular narrative of the factual circumstances of the case. As a mediator, I especially have to resist the urge to engage in fact-finding.
During the first few mediations I observed at TMG, I found myself asking the mediator, “So, what do you think really happened?” to which the mediator would respond, “I have no idea.” Skeptically, I took that to mean something like, “I think I know what happened, but mediation is future-oriented, so what happened doesn’t really matter, and there’s no use discussing it.” But after observing dozens of mediations, I realize now that I was completely mistaken. The mediators often meant this quite literally. They in fact didn’t know what happened, and they firmly believed that they couldn’tknow what happened even if they tried. This common quality I saw across mediators of different backgrounds and styles is what one might call humility, which Merriam-Webster defines as “freedom from pride or arrogance.” In other words, a humble person has an accurate, not exaggerated, sense of one’s own importance, abilities, or understanding.
Humility can manifest in various ways in a mediator, including:
● transparency about one’s own limitations or lack of understanding,
● openness to the unknown,
● capacity to simultaneously hold multiple narratives in tension,
● deferral of one’s own agenda to make space for others’ needs,
● reluctance to make assumptions of any kind,
● refusal to be persuaded by biases and perceptions, and
● recognition of the complexities of human intentions and interactions.
Though it is possible that effective mediators just happen to be humble people, I have observed that humility in a mediator can often drive parties toward resolution, leading me to believe that perhaps this is no coincidence at all. Maybe it is a quality that mediators, either consciously or subconsciously, adopt and cultivate throughout their careers.
One way a humble mediator naturally encourages resolution is by empowering parties to work to solve their own problems instead of relying on him or her to fix matters for them. One civil mediator at TMG always makes the following statement in the opening joint session: “I am not the type of mediator who listens for ten minutes and thinks I knows the right answer and pressures you to agree with me or leave. That’s not my style, nor do I think it’s appropriate. You know far about this dispute than I will ever know. I think the heart and soul of mediation is that you are all active, reasonable participants, and it’s my job to help you reach a resolution, if that’s possible.” Many parties come to the mediation table expecting the mediator to propose a solution, but by setting the expectations early in the session, a mediator awakens parties to the reality that only they have the ability to settle the case.
Also, humility in a mediator tangibly communicates to parties the uncertainty and risk associated with failing to reach a mediated agreement. Parties become so accustomed to they way their attorneys talk about their case, often in an overly confident and posturing manner, that it is sobering to hear a mediator say, “I don’t know,” in response to questions like:
● “What do you think a judge will do here?”
● “Do you think this is a convincing argument?”
● “Do you think we’re going to settle?”
● “What do they really want?”
● “What’s their bottom line?” (Note: As I’ve seen countless times, a party’s expressed “bottom line” is rarely the true bottom line. Even where an attorney says, “I only have authority up to X,” it can be subject to change, sometimes after just a short phone call.)
● “What do you think is the right outcome?”
● “How much do you think this case is worth?”
A competent, skilled mediator’s uncertainty about such questions highlights to parties the fact that nobody really knows what will happen if the parties continue on with their dispute. And if the mediation process plays out as it should, the parties end up feeling less and less certain about their positions and desired outcomes throughout the course of the day, which makes them more and more amenable to resolution.
C.S. Lewis once wrote that a truly humble person “will not be thinking about humility: he will not be thinking about himself at all.” And maybe this is the mark of a truly effective mediator: a self-forgetfulness and, therefore, an intense focus on the needs and interests of parties and their advocates. There is no need for a mediator to pretend to be more knowledgeable, more competent, or more confident than is true. This posture of humility and transparency appeals to me because it offers a kind of freedom that I have not seen in other professional realms. For years I have sought to cultivate this kind of attitude in my personal life, and I feel incredibly grateful to have discovered a profession that similarly values these qualities.