‘The Donkey and the Tiger’ – A Story of Mediation, Arbitration, Med-Arb or Arb-Med?
26th June 2023
For anyone who knows me, they will say that I have the potential to get incredibly invested, frustrated and infuriated on matters for which I truly care about, and this is only exacerbated when I am greeted by seeming ignorance and/or idiocy (not the ideal characteristics for a mediator I agree, but the cloak of ‘independence’ and professional values helps when I am acting in the capacity of a mediator).
A friend of mine (a long-standing professional associate from the legal profession) knows me all too well, he is quite often a ‘voice of reason and calm’ for me, particularly with the madness that often engulfs the football world. He often employs a similar approach to what I attempt to apply in mediations; in getting the parties in dispute to draw on their own knowledge, make realisations, experience that illusive ‘paradigm shift’ and come up with their own solutions; rather than pontificate and lecture.
As such, *a few months ago when I was really questioning my own judgement, sanity and legitimacy in regards to a football matter that had reached the highest echelons of the sport’s legal framework at CAS (Court of Arbitration for Sport), my friend sent me a link to the fable of ‘The Donkey and the Tiger’. Since this time, I have referred back to the fable and sometimes pondered on its meaning (obvious and hidden) and how it can be interpreted both in a personal and professional aspect.
The Fable in Question
Please forgive me for reproducing the fable (below) if you have heard or read it before. There are various versions of this in circulation, so I will just refer to the version I was made aware of:
The donkey said to the tiger: – “The grass is blue”.
The tiger replied : “No, the grass is green.”
The discussion heated up, and the two decided to submit him to arbitration, and for this they went before the lion, the King of the Jungle.
Already before reaching the forest clearing, where the lion was sitting on his throne, the donkey began to shout : “Your Highness, is it true that the grass is blue?”.
The lion replied : “True, the grass is blue.”
The donkey hurried and continued : “The tiger disagrees with me and contradicts and annoys me, please punish him.”
The Lion then declared : “The tiger will be punished with 5 years of silence.”
The donkey jumped cheerfully and went on his way, content and repeating : “The Grass Is Blue.”
The tiger accepted his punishment, but before he asked the lion: – “Your Majesty, why have you punished me, after all, the grass is green?”
The lion replied : “In fact, the grass is green.”
The tiger asked : “So why are you punishing me?”
The lion replied : “That has nothing to do with the question of whether the grass is blue or green. The punishment is because it is not possible for a brave and intelligent creature like you to waste time arguing with a donkey, and on top of that come and bother me with that question.”
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The worst waste of time is arguing with the fool and fanatic who does not care about truth or reality, but only the victory of his beliefs and illusions. Never waste time on arguments that don’t make sense.
There are people who, no matter how much evidence and evidence we present to them, are not in the capacity to understand, and others are blinded by ego, hatred and resentment, and all they want is to be right even if they are not.
When ignorance screams, intelligence is silent.
Your peace and quiet are worth more.
– Unknown Author
My Frustrations In ‘Being Blind’ to the Quandary* (as above*)
Probably one of the biggest frustrations in all of this, is that not only was I ‘blind’ to the situation, but the fact that I often give similar advice to others albeit not with such an illustrative fable but with a very simple statement:
“Don’t argue with an idiot, as it just makes two of them”
In fact, what is even more infuriating is the fact that many of the lessons in terms of; understanding true intentions, identifying the ‘needs’ rather than the ‘wants’, and ultimately triggering a ‘paradigm shift’, form a substantial part of my mediation training, and I had been blind to it in my own situation.
Is the Lion an Arbitrator (as the fable says)?
Besides the lesson learned from the fable and ‘opening my eyes and ears’ to the situation in my best
interests, it also made me consider the role of the lion in the fable.
Whilst the fable (in this version) speaks of the Lion as an ‘Arbitrator’ in the dispute, others may perceive the lion as a ‘mediator’ – but whilst both perceptions are in some ways accurate, I don’t think the role of the lion can be truly encapsulated by that of either a mediator or arbitrator (in my opinion).
· An example of why the Lion may not be considered a mediator, is that the Lion actually passes a judgement/ruling (i.e. ‘silence for the tiger’) and as such this is not the duty of a mediator. It would be the parties in the dispute who would come to a mutual settlement of the dispute and NOT the mediator.
· An example of why the Lion may not be considered an arbitrator, is that although their decision and judgement is a wise one, it could be argued there is no objective rule or law as to make the ruling or seemingly impose an adequate punishment.
Whilst my perception of arbitration is a more institutional and set approach/process, mediation on the
other hand is more nuanced, which may come from the fact it is arguably the younger cousin of the two, and still developing greatly.
In fact, most qualified professional mediators readily accept that despite the core values and practices many of them uphold and hold dear; mediation comes in a variety of ‘flavours’. Mediators may have slightly different approaches depending on for example: who they trained with, mediation specialities, background, culture, geographic location, and needless to say this approach may indeed be adapted and
fine-tuned over time with experience or to even adapt techniques to focus on a specific dispute.
Is the Fable an Example of ‘Med-Arb’ or ‘Arb-Med’?
During my mediator training and my ongoing mediation ‘journey’, I have become increasingly aware of the hybrid processes of ‘Med-Arb’ and ‘Arb-Med’ (both combinations of mediation and arbitration, yet with different timelines). I will be quite honest in saying that I have had trouble accepting these ‘hybrids’ (for a variety of reasons), if not even understanding the processes and theories behind ‘Med-Arb’ and ‘Arb-Med’.
It goes without saying that mediation and arbitration are inextricably linked as part of the ADR ‘tapestry’,
but they cannot in my view be considered ‘siblings’, but moreso ‘distant cousins’ who work together as and when a relevant situation arises. Hence, it is understandable as to how ‘Med-Arb’ and ‘Arb-Med’ have
developed over time, if only to facilitate and assist in disputes of a specific nature – suffice to say the fable highlights (at least to me) how a ‘hybrid’ approach of mediation in combination with arbitration can work.
So, is the Lion More Mediator OR Arbitrator?
Some may consider It quite ‘sad’ that on several occasions I have pondered this fable quite deeply from a more professional perspective (i.e., in regards to mediation theory and practice) than that of a personal one. Yet I make no apologies for this, and seeing as some have labelled me a ‘Mediation-Evangelist’ since my epiphany regarding mediation, I will graciously accept that tag as a positive.
So, the ‘million-dollar question’ (for this article and musings, at least) is simply asking: “is the Lion more Mediator OR Arbitrator?” On reflection I would say that the Lion (in this version of the fable) is more a mediator. Granted, the timeline in which the fable’s dispute resolution process was done is questionable and some aspects such as confidentiality may be queried. If reordered slightly, and in private consultation, the Lion got the Tiger to realise their mistakes and their position in the dispute rather than offering an opinion (and somewhat pontificating) as well as passing a judgement; then the Lion has indeed acted as mediator.
My reasoning for this (and I could easily argue with myself over my analysis, as I am sure others would), is that despite for the reasoning (in effect an opinion, thus not mediator practice) given by the Lion and effectively passing judgement, there is no evidence of the Tiger offering feedback on the wisdom as to why the Lion resolved the dispute in that way …. so, can we take it that the Tiger is in agreement?
Thus, meaning the Tiger and Donkey are seemingly in agreement with their settlement in relation dispute and can move on with other things, rather than worry about what was on reflection a pointless dispute.
And the lion has in effect conducted a successful mediation (albeit slightly nuanced).
“We may even need a mediator to help us to agree on the role of the Lion”. 😊