Mediators seek inspiration from a variety of sources. With sincere apologies to more profound readers I suggest some from the opening ten lines of T S Eliot’s Burnt Norton.
Time present and time past
Are both perhaps present in time future,
And time future contained in time past.
If all time is eternally present
All time is unredeemable.
What might have been is an abstraction
Remaining a perpetual possibility
Only in a world of speculation.
What might have been and what has been
Point to one end, which is always present.
Considering the past
As mediators we are always required by the parties to explore the past. In many cases that exploration is driven by the parties long-standing resentments and anger. Legal arguments often disguise emotion with a rationality that, if taken at face value, will distract from the essential need to understand the sources of those emotions if a mutually accepted solution is to be found. Persuading the parties to accept the reality outlined in these lines seems to me to be crucial if a settlement is to be reached.
The essential argument is that whatever has occurred in the past is ‘unredeemable’, nothing can be altered and dwelling on what might have been done differently is to waste energy. An essential requirement of an effective mediation is to allow the parties the time and space to accept this reality. Then the need is to assist them to decide to concentrate on the importance of the present and to regulate what is to occur in the future. Exactly how this is achieved will be different in each case, but it is that objective that should guide the questioning and observations of the mediator. The concentration must be on looking ahead and not on the past.
Those who criticize mediation as no more than a squalid exercise in market-place haggling miss this point entirely as will an undue consideration on artfully constructed legal analysis. Time spent on individual enquiry and exploration of attitudes and motivations, techniques that are almost entirely foreign to standard litigation practice, is frequently essential and the best route to achieving a mutual acceptance that speculations on what might have been are futile, and that the future is best approached through a settlement. Often the time this takes seems excessive, a great deal of patience is often required, but overall, the process will save both time and expense. Those lengthy periods waiting for the ‘other’ side to respond to proposals can often be creative in fashioning changes of attitude and a willingness to compromise. The mediator who keeps this in the forefront of his or her thinking, remains positive throughout the process, and continues to concentrate on obtaining resolution will be the most likely to succeed. That does take a degree of stamina: resolute enthusiasm in the face of apparent intransigence is essential, and often not without difficulty!
Those with a keen eye will have noticed the poet’s careful use of the word ‘perhaps’ in the second line. This should also apply to these thoughts as it must be admitted that the analysis adopted will not apply in every case. There are those who misuse mediation in a cynical way with the only objective of gaining intelligence for the litigation battle ahead. Experience will enable a skilled mediator to see when it is the case and when it is not which, thankfully, is the position in the majority of mediations.
No doubt Eliot had profounder ideas in mind as he wrote but nevertheless his thinking provides the pleasure of unintended benefits particularly for mediators.