Jay Rothman: The Reflexive Mediator

by Heidi Burgess for Jay Rothman

September 9, 2022

In response to our question about neutrality, Jay Rothman referred us to his Negotiation Journal article entitled "The Reflexive Mediator": which was published in October, 2014. 

In his introduction, Jay writes:

This article describes a reflexive approach to mediation that can be taken by mediators, which I see as a promising corrective to two positivist ideas in the field of mediation that are slow to fade: that we should be neutral as third parties and that parties should seek solutions based on objective truth that can be verified and measured.

Jay goes on to assert that first, "third parties cannot be neutral, and therefore striving to be so is a wasted effort." Instead, Jay argues (citing many others as concurring with this notion) that mediators need to be "aware" of their own reactions to the people in the room and to the discussions taking place, practicing what others have called "mindfulness mediation." He suggests mediators do this using "reflexivity" which 

refers to an interactive process that takes into consideration the relationship between self, other, and context. This reflexive process entails engaging in the moment as well as noticing and, as much as possible, understanding one’s thoughts and feelings during an encounter with the parties in a certain time and place. Engaging in this process helps the mediator expand her or his frame of attention from a primary focus on the parties and their conflict situation to also consider how he or she encounters those parties, and what are the underlying assumptions and priorities that shape their mediated interactions.

Once a mediator recognizes their bias, they can chose to hide it, or to reveal it in an effort to raise important issues. As an example he talks about a divorce mediation in which he recognized his own bias towards the husband, whom he viewed as the underdog. After recognizing this bias, however, he realized that he had to balance it.

Turning my attention to the wife, I seek to see her side and why she seeks full custody; in a way I seek to “act” her role internally,by becoming the“ not not me”and trying at least momentarily to view the situation through her eyes. Thus, having both articulated my own bias to myself and raised it to a level of self-conscious scrutiny, I “discipline it” by trying to balance it by taking perspective of the other side, just as I hope the parties will eventually be able to do with each other.

Jay also warns that reflexive mediators must first:

make peace with conflict themselves. Too often, an urgent need to solve the conflict — perhaps arising out of mediators’ own discomfort with it — can lead third parties to collude with disputants to rush headlong into problem solving or solution-seeking. The reflexive mediator’s job is to bravely engage conflicts, displaying a balanced approach between the biologically conditioned extremes of flight and fight.

Telling a story of when two disputants projected their anger with each other on him, the mediator, Jay explained how he used I messages (he didn't use that term, though, I'm adding that) to explain how important it was to him, as a mediator, to be trusted, and he asked the parties to help him understand what he did to lose their trust, and how he might regain it. He went on to help them explore how trust between each other was actually the core issue of their dispute (not money, as they first assumed). Once they all started grappling with trust and distrust, they were able to resolve the dispute.

Jay then introduces the concept of "analytic empathy," in which the parties recognize that they are in at least some ways similar. It does not require that they empathize with the the other emotionally; it does not require that they trust each other. "But analytic or cognitive insights about similarities between oneself and the other can help “unfreeze” opponents’ assumptions that he other is automatically and irrevocably an enemy."

Such understandings can enable parties to see that adversaries, like themselves, are deeply motivated by shared human concerns, and that unless these are fulfilled conflict will be perpetuated. As parties begin to see their similarities to their enemies — their similar motivations, fears, and needs (for safety, control, identity, etc.) — enmity may diminish and the “us vs. them” split breaks down.

Thus, through reflexive mediation, Jay concludes,

the parties can gain a more nuanced view of the conflict and a better understanding of the other party’s needs, values, and identities. The reflexive mediator achieves this both by demonstrating reflexive behavior himself/herself and by encouraging it in the parties. Ideally,when reflexive mediation succeeds, parties will discover more about each other and themselves, and will develop the will to turn their conflict into a process of collaborative learning and constructive change.