Michael L. Moffitt is an assistant professor of law and associate director of the ADR program at the University of Oregon School of Law in Eugene, Ore. This article is a summary of the research and theory presented in his article “Casting Light on the Black Box of Mediation: Should Mediators Make Their Conduct More Transparent?” 13 Ohio State Journal on Dispute Resolution 1 (1997).
• “This party clearly feels misunderstood. I think I should try to demonstrate some empathy for his situation.”
• “I think this party is overly confident about what is likely to happen if this ends up in court.”
• “If this party’s emotions aren’t addressed, we’ll never make any progress on the substance.”
• “These parties are suffering from a real lack of creativity. I’m hoping to spark some better ideas.”
Practicing mediators often have thoughts like these as they conduct mediations. They ask themselves, “What should I do next?” and “What kind of impact might I have on the parties at this point?” The answers to these internal questions are often the product of years of mediation experience, a unique perspective on the dispute and disputants, and careful analysis of the dynamics that exist between these parties.