Paradoxes of Dispute Resolution
Presenter:
David A. Hoffman
The practice of mediation and other forms of dispute resolution often call on the practitioner to balance values and objectives that are inherently contradictory. For example, mediators believe that party autonomy and self-determination are fundamental to the process, while some parties seek out mediators because they expect the mediator to apply a certain degree of “pressure” – at least to the other side, if not to them. The parties often want the mediator to have subject matter expertise, but if s/he demonstrates too much expertise, they fear s/he may be too directive. Mediators strive to communicate empathy, which may be in tension with the need for honesty; asking questions that challenge a party’s assumptions risks the appearance of partiality. As mediator Gary Gill-Austern has written in a recent article:
“The mediator’s role is complex, even paradoxical. A mediator must be remarkably and uniquely present – a full participant. At the same time, and more fundamentally, the mediator must be present in a manner that embodies an understanding that she or he has no significance at all to the dispute and its resolution. . . . The mediator must function within a paradox: how to be central and matter not at all.”
“Faithful,” Journal of Dispute Resolution, 343 (2000).
The need to manage the tension between such competing goals makes the successful practice of mediation challenging because it is not clear that there is an optimal point of balance, and what might be the right balance for one party could be wrong for the other. Mediator and attorney David A. Hoffman will explore these paradoxes and others, in an interactive program in which attendees will be invited to explore the paradoxical aspects of their own work.
David A. Hoffman is a partner in the New Law Center, LLC, with offices in Boston and Newton. His practice is concentrated in mediation, arbitration, family law and employment matters. He is the co-author, with Professor David Matz, of Massachusetts Alternative Dispute Resolution and a number of articles on ADR. He has taught courses on mediation and negotiation as an adjunct professor at Harvard Law School and Northeastern University Law School.
This is the last session of the 2001-2002 Dispute Resolution Forum. Following the meeting, there will be a discussion of next year’s Dispute Resolution Forum Series with Susan Hackley, Managing Director of the Program on Negotiation.
