That Which Doesn’t Go Away: Why Reality Testing is Essential in Mediation

“Reality is that which, when you stop believing in it, doesn’t go away.” — Philip K. Dick, American writer.

In mediation, that which “doesn’t go away” is critically important for the long-term success of an agreement. That’s why the phrase “reality testing” is common, not just in mediation, but in all of Alternative Dispute Resolution. Why is it so important, especially when parties are trying to work out their own best resolutions to a particular conflict?

The Background and Reasons for Reality Testing in Mediation

Mediators generally try to get the parties past their “positions” so they can focus more productively on their “interests”. (The details of the differences are for another day, but to put it simply: if you want to rely only on “positions”, go see a judge who’ll tell you if you’re right about the law and if you can prove the facts. If you want to get to the heart of the matter and talk about what’s important to you and the other party, and what you need for a successful resolution, then you’re talking about “interests.” Welcome to mediation!)

The way many mediations progress, there comes a time when everyone starts brainstorming or spitballing possible solutions. That process encourages the parties to throw out as many unfiltered ideas as they can, no matter how crazy it sounds at first. From that universe of storms and balls, the parties can together examine all the good and nutty possibilities. That’s when you try to figure out what makes the most sense and what might work best for everyone.

Because the parties have been so open and creative in simply throwing out all the ideas they can think of, some of the ideas tend to be a little “out there.” Most of us don’t storm brains and spit balls all day long. Normally, we depend on our habits and patterns to get things done in a customary way. But in mediation, we know that the customary way has resulted in conflict, so we have to work through a different solution that may not be obvious at first.

Thus, more than we do in our daily lives, in mediation we have to think how our ideas and proposals might actually work in the cold, hard light of day, now and in the future. That’s reality testing. Two examples, one from divorce and one from a business dispute, can make the concept of reality testing, well, real.

A Divorce Example

A divorcing father, Jack, might say, “I demand completely equal custody of our 12 year-old, Billy, so everyone will know I’m an equal parent.” That might be his position. When pressed, Jack might say, “I’m upset that our marriage is failing and I want Billy to be just as comfortable with me as he is with his mother, Jill.” That might be an interest. In mediation, the parents will probably throw out many ideas about how to spend time with Billy. One of Jack’s spitballs might be that they split residential custody so that Billy is with one parent for one week and with the other parent the next week. Let’s suppose the parties start to close in on that idea as meeting both parents’ and Billy’s needs and interests. “OK. How will that work? Jack, your job has very irregular hours and you may be called out of town on short notice. Will you be able to arrange your own schedule so that you can be sure to be in town for a full week at a time, and not at the office at times of the day when Billy needs you?” That’s testing the reality of a proposal. The parties can see for themselves that a proposal might have to be modified or abandoned if, when they figure out how it might actually work, they realize it probably won’t.

A Business Dispute Example

Steve’s company was supposed to wholesale premium widgets to Sue’s retail store, but they weren’t a high enough quality to be premium. Steve’s company doesn’t have enough money to pay damages. During mediation, someone spitballs that maybe Steve’s company could immediately provide a large number of standard widgets and sell them to Sue’s company at a 30% discount off their normal wholesale cost, to make up for the past loss. “OK, maybe that meets everyone’s interests if it could work. But Steve, you need kryptonite to make widgets and there’s a world-wide shortage at the moment. Do you already have enough widgets in inventory, or do you have a special source of kryptonite, so you could fill that order?” Without testing how a deal might work in the real world, a resolution can look good on paper, but not get either party anywhere in practice.

Reckoning with “that which doesn’t go away” — reality testing — is essential in mediation, and not a bad idea any time.