Mediation Narrative: Dimensions of Understanding

Volume 19 No. 1


“Toilet stalls! If I hear any more discussion about toilet stall dimensions, I will just shut the college down,” the university president snapped at me, the mediator whom the federal judge had foisted on him.

“Did you come all the way from liberal Austin to discuss toilet stall dimensions?” he barked, his eyes like lasers piercing holes through my head.

In a way, I could feel for the university president. The federal judge had not only ordered mediation and appointed the mediator but had issued an order specifying that mediation take place for five days, from December 18 to December 23, and requiring the university president, the university comptroller, the university architect, the university engineer, and all 175 students with disabilities who had sued the university to attend the entire mediation. No one would be released from the obligation until the matter settled or the mediator declared an impasse.

Another Time, Another Place

I flashed back to my release from the hospital for the second time in five weeks.  My otherwise perfect hip replacement had developed a complication – an incision infection that fortunately had been caught before it had migrated into my new appliance.  Antibiotics had been pumped into my veins, and the surgical “clean-out” had worked. But I still couldn’t put any weight on my leg, my energy was spent and my recovery was set back four weeks. I was using a walker again, and I was back in my “sick chair.”

This was actually a lovely, cushioned chair. It was propped up against the couch so that when I got up, it wouldn’t move, potentially causing me to damage my new appliance. My “grabber,” a cane with a claw at the tip, rested in the chair’s side cushion in case I dropped something – which I did all the time. I was still under “hip restrictions” and couldn’t bend down. The remote was under the other cushion. I was not fond of television before my surgery; I really hated it after. The month was May, with the election still six months off. The shrieking faces on cable news already seemed worse than any horror movie I had ever seen.

I sat alone. My family would be away for four more days. Did I want to get up and use my walker to go into the kitchen? Did I want to go to the bathroom and use my elevated toilet seat? These became the all-consuming questions of a man who in a much prior life had been an athlete. I decided I was not terribly hungry and I could hold out on the bathroom for another hour. I adopted a mediator’s default position: immobility.  Worse, I thought the problem was only in my leg, but it was in my head and heart as well.

Coffee Talk Mediation

The university case reminded me of a national class action mediation involving a Fortune 500 company. The topic under discussion was the elevation and dimensions of ramps.

The excellent lawyers brought their engineers to the mediation sessions, and the mornings were always devoted to the specifics of vectors, angles, placement of the ramps, and aisle widths and barriers inside the company’s stores. The engineers on both sides were good problem solvers by nature.  But the conversations were granular, specific and unbelievably dull. We drank excessive amounts of coffee during those morning sessions, causing me later to dub this the “coffee talk” mediation.

I stayed with the conversation only because the big picture was so important and both sides were absolutely committed to a fair resolution. But I could understand the university president’s perspective: would three inches in aisle width really make that much difference?

On this topic, I had gained some insight of my own. Four weeks before my hip replacement surgery, I had flown to Washington, D.C., to accept the presidency of the International Academy of Mediators. I was walking with a cane, and every step hurt. I had been walking with a profound limp for months, torturing my quads and hip flexors.

My plane landed at the end of the terminal, far from the baggage claim area. I could see no carts. I thought about how many steps I would have to maneuver and how long it would take. Suddenly, distance -- no matter how small -- really mattered. Somehow, I made it to the baggage claim, got outside, and headed to the cab stand. On the way, however, I encountered a barrier that was just a few inches too high for me to step over. I didn’t know what to do. The place was crowded with people, and I had suddenly become an annoyance - an obstruction. I saw a man in a suit grimace as he navigated around me in a hurry. The real world moves in fast-forward. This was no place for the slow.

An airport policeman assisted me; I was creating a problem. I had already sweated through my shirt. Really, it was not that hot in Washington yet.

Those months of “temporary disability” taught me many things. Among them: a few inches really do make a difference.

A Little Experiment

The university president taught physics, and it occurred to me that maybe I could transform his anger with a little experiment. The idea was risky, especially since the mediation had just begun, and we had not yet developed a relationship or any measure of trust. However, I sized him up as a direct, honest, brilliant man who was simply frustrated by the situation. He didn’t normally bark and was thoughtful, according to two students in the other room. He didn’t, understandably, want to spend five days of his winter holiday at the university. He also had not liked the story about the case in the newspaper the day before, which had made him out to be uncaring and thoughtless. And, bless his heart, he would not move on any other topic until I answered his question about toilet stalls.

I am not a mediator who thoughtlessly takes unnecessary risks, but I also believe that when certain moments present themselves, one must respond with courage, conviction, and a silent prayer; “Dear Lord: Please don’t let this be wrong.”

So instead of answering the president’s question, I looked directly at him and posed one of my own: “I know we only just met, but can I ask you a delicate, personal question?”

“You can ask me whatever you want,” he said in a low-throated voice.

Deep breath, Eric. Just ask the question,” I told myself. 

“Do you like to shut the bathroom door when you take a crap?”

“You came all the way from Austin, Mr. Galton, to ask me that question! Of course I close the door! What difference does that make!” he shouted.

“Well, Mr. President, I was hoping that might be your answer,” I replied. “I hope you don’t mind engaging in a little experiment.”

On the Road to Recovery

After my hip replacement surgery, I lived for physical therapy despite the torture. Every painful stretch, every small step, every bit of progress was going to return me to the land of the living.

I threw out all my hospital clothes. I put the sick chair in the corner. I put my walker in the garage, and I went back to using the cane. I could put 50 percent of my body weight on my leg. Even better, I was back at work, doing what I love, which is mediating.

Despite my progress, getting ready for work was still an adventure: I had to shower in a seated position. I could dress myself but still couldn’t get my socks on. I drove to work sockless.

I had a “handicapped” placard for my car that would be good all the way through the end of November, practically the end of football season. I used to think that there were too many handicapped parking spaces, but I quickly found out that wasn’t the case. Some stores and malls just don’t have enough. I still had to think ahead about where I would park and how far I would have to walk.

 Stairs were deadly. The nine stairs from the parking lot to my mediation center were  about as many as I could manage. My office itself presented other challenges: the toilet was too low, so I had to remember to use my bathroom at home just before leaving. The office lock was at the bottom of the door, out of my reach, so I always let out a relieved breath when I saw the lights on and knew my assistant had opened the building.

In the first mediation after my surgery, the lawyers didn’t know I had had a hip replacement. They saw my cane and my slow walk, which triggered the inevitable “What happened to you?” I answered that I was all right, and we started the mediation.

I had never been happier to be out of my sick chair and in my mediator’s chair. During the general session, I almost forgot I was still somewhat disabled.

But I was slow getting out of my chair; and even though the office was ADA compliant. I couldn’t handle the doors easily. I used to march in and out of rooms. I couldn’t do that anymore.

Somehow I felt  I was a better, more complete mediator. I can’t quite figure it out. With the help of the mediation gods, all four of my cases that week settled. I was becoming me again.

A Very Tight Fit

“Experiment?” the university president asked.

“I’ve arranged for one of the students to loan you his motorized wheelchair. The experiment is quite simple. You get in the chair. You go to the men’s room down the hall. You get into one of the toilet stalls. You shut the door. We stop talking about toilet stalls. Simple, actually,” I responded.

Regrettably, the scene that followed predated cell phones with cameras. The president, settled into the wheelchair, proceeded down the hall, with students, lawyers, and engineers in tow. He navigated the hallway easily but took five minutes to figure out how to enter the restroom. He found an empty stall and managed with some difficulty to turn his chair around, but then he bumped into one side of the stall.

“Tight fit,” he said, “but I’ll get it next time.”

Six attempts later, the university president backed the chair into the stall. But despite many valiant attempts and different methods, he could not close the stall door.

He sat in the chair and put his head down. Then he raised his head, smiling.

“We’ve got to fix these toilet stalls!” he said. “I’m sorry I didn’t get it before. What else do we have to fix?”

Suddenly, doorknobs and entry-level door pressure were important. A brilliant English major advised the university president that his motorized wheelchair could not climb the hill to the English department. The university president learned that although there were seats at the football stadium for students with disabilities, the students felt isolated because there was no seating nearby for their able-bodied friends. Once the situation became clear, the university president became the scientist and empathetic human being that he was. Subject to budgetary restrictions and engineering feasibility, he wanted to fix everything. The absence of access, he realized, was bad for the university and did not reflect its core principles or values. Two days later, a 40-page mediation agreement memorialized all the physical changes, a new understanding and new lines of communication between the administration and its students with disabilities.


“In another four weeks, you won’t need your cane. You are making great progress, Eric,” said Patty, my physical therapist.

“I hope so,” I responded, holding back my emotions.

I had been down on myself. My situation, unlike those of so many I have met and served, had always been temporary. In all, I was and would be “disabled” for only six months. Just half a year. What business did I have falling into such a bad state when there were people who would wake up every day of their lives knowing they must manage and navigate a world that does not fully appreciate the challenges they face?

In my advanced trainings, I often tell mediators they should never tell someone who has experienced a misfortune that they know how that person feels -- unless they have actually been there.

I realized that I haven’t been there. I merely visited, and I spent all my time looking for a way out. At least I had a way out.

So has this experience made me a better mediator? I think it has. I always felt that I was empathetic and could see the issues in dispute from different perspectives. But life and experience are, in the end, the greatest teachers.

We live in a fast and impatient world. In some venues around the United States, lawyers encourage mediators to skip the general session. The rationale is that everyone knows the case, so what could they possibly have to talk about?

Everything, really, would be my answer. The painful gridlock we feel in society today is a byproduct of our inability to patiently communicate and empathize. Large problems need a process that encourages and allows people to walk in each other’s skins. Happily, if encouraged and in a safe place, humans have the ability to do this. Such a process is the opposite of touchy-feely; it involves courage, conviction and openness.

As for me, I will not be using my handicapped parking placard during football season, despite the legendary parking problems at Austin’s Royal Memorial Stadium. Someone who truly needs that space should use it. There are never enough spaces. Distance and barriers do matter.

The long walk to the stadium will remind me of what I have left behind. But I will never forget what I have learned along the way.

Eric Galton is a founder of the Lakeside Mediation Center in Austin, Texas. He is president of the International Academy of Mediators and his recent book with Lela Love, Stories Mediators Tell, was published by the ABA. He can be reached at




DISPUTE RESOLUTION MAGAZINE is published quarterly (4 times a year) by the American Bar Association Section of Dispute Resolution. Dispute Resolution Magazine provides timely, insightful and resourceful information regarding the latest developments, news and trends in the growing field of dispute resolution throughout the world and features internationally-known scholars and practitioners as authors.


Dispute Resolution Magazine Editorial Board

Joseph B. Stulberg
The Ohio State University Moritz College of Law
Columbus, OH


Andrea Kupfer Schneider
Marquette University Law School
Milwaukee, WI


Chair Emeritus
Frank Sander
Cambridge, MA


James Coben
Hamline University School of Law
St. Paul, MN


Marvin Johnson
Silver Spring, MD


Bennett G. Picker
Stradley Ronon
Philadelphia, PA


Effie D. Silva
McDermott Will & Emory LLP
Miami, FL


Donna Stienstra
Federal Judicial Center
Washington, DC


Zena Zumeta
Mediation Training & Consultation Institute
Ann Arbor, MI


Nancy Welsh
Carlisle, PA
Council Liaison


Gina Viola Brown


Associate Editor
Louisa Williams

Law Student Editors
Darlene Hemerka

Joyce Fondong

Penn State University

Dickinson Schools of Law


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