Vail Daily column: Experiential mediation
January 14, 2017
Today's Open Bar column is my hundredth. It is a mark that has troubled me of late.
I am impatient and had many moments of delusion in which I envisioned that my simple words to a limited audience could create widespread change in the legal system.
It is a mammoth and absurd goal, made all the more ludicrous by my sense of failure at so far missing its attainment. But as I put that bad juju down into words for the first time, I am struck by the catharsis that lifts that unnecessary burden from my shoulders.
This also being a day that we celebrate one of mankind's most famous dreamers, I am inspired to share an idea that sits at the nexus of my life's passions: dispute resolution and the outdoor world.
Experiential mediation takes the process of problem solving out of conference and courtrooms and into the geographies that we want to inhabit.
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Like most of this valley's denizens, I am at my apex when I am outside. My mind is more free, my body is more nourished; I am simply happier. In ways physical and mental, I am challenged, I am humbled, I am uplifted. I suspect that almost all of you feel this acutely; it is why you live here.
To navigate the slopes and trails and waterways of our environment is to explore unforeseen possibilities and the thrill of adventure, to embrace the unknown and the terrifying, to test limits and be surprised by outcomes. Working through interpersonal conflict is little different. The natural world is therefore an opportune locale to bring people together and end their quarrels.
The idea of using the outdoors to unite folks is not revolutionary; many corporate or couples' retreats are premised on the promise of a natural setting. Apocryphal or not, stories abound of deals being closed on golf courses or tennis courts or ski runs. The same logic applies when the deals do not end up as intended and issues need to be addressed.
My proposed shift simply overlays the well-tested processes of mediation over the already-recognized benefits of doing business outside of the normal confines.
Mediation on the mountain
The Vail Valley is an ideal epicenter of experiential mediation. Our topographies contain myriad locations for a transcendental end to a conflict. I imagine a mediation during which the disputing parties, both lifelong skiers, join me for a half-day on the mountain, talking through their problems on the chairlift or while jaunting up the skintrack.
Skiing is only the most obvious example. Perhaps the parties would prefer a hike or a snowshoe or a climb or a run through rapids or any other activity that puts the parties in an ecosystem that is at once comfortable and unpredictable.
The most difficult part of a mediator's task is to identify the parties' common ground and then get them to recognize it as such. Experiential mediation starts off on the right track because the commonalities are already established.
Mountain folk share experiences that transcend the superficialities of mere office dwellers. As a corollary, when people who are too accustomed to an indoor life are exposed to an outdoor activity, it is an invigorating and inspirational experience that can spark a paradigm shift in the way that they deal with their adversaries.
The principles that make the idea of sporting mediations attractive apply equally in other contexts. A duo of gourmands may do their best bonding over a lavish brunch spread. Or, we could work with many of our fine local restaurants to create a mediation menu customized to the tastes of the parties.
The time spent at a table and in a mindset of enjoyment are extremely conducive to open, honest and creative communication. That is the most critical component of a successful mediation.
Of course, as we craft unique experiences tailored to the needs of the mediating parties, we must be mindful of the legal and ethical rules that bind the mediation process.
As but one example, it is unconscionable to conduct a mediation at cocktail hour, no matter how nice it is that booze loosens the tongue and mind. We must create enforceable agreements backed by sober, informed consent. Mediation must maintain its sanctity to be a valid alternative to the legal system.
This missive is not just a presentation. It is an invitation, a clarion call to join me in a pilot program to test the capabilities of experiential mediation. I will be reaching out to logical partners in this endeavor, but please feel free to contact me directly so that we may discuss ways to create the ideal experience during which to resolve your particular dispute.
T.J. Voboril is a partner at Reynolds, Kalamaya & Voboril LLC, a local law firm, and the owner and mediator at Voice Of Reason Dispute Resolution. For more information, contact Voboril at 970-306-6456, firstname.lastname@example.org or visit http://www.rkvlaw.com.
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