Mediation Blog by Diane Cohen
Wow! I’ve been overwhelmed with work and haven’t posted in months. But I’m back now and thinking about the topic: Is there good and bad mediation practice?
So, first, of course, there must be some completely unacceptable behaviors by a mediator. But within the realm of reasonable professional behavior, can we categorically say that some strategies, styles, approaches…are good or bad; better or worse across the board?
It seems to me that parties come to mediation for different reasons, and that their goals (stated or unstated) will determine appropriate mediator behavior. So, the approach a mediator takes may vary widely depending upon the goal of the parties (and, perhaps, whether they agree on the goals or have different goals).
So, for instance, if the parties’ goal is to come to a resolution quickly and avoid going to trial in the coming week (whether in the commercial, marital or another context), different mediation strategies may appear to be reasonable in that context than if the parties’ goal is to see if they can come to a resolution that resonates with both of them before they decide whether to see a marriage counselor or consider ending their relationship. These two situations are so different that they represent two opposite ends of a spectrum. At one end is a mediation in which the goals relate to figuring out what each person truly wants and needs and seeing if there is common ground and the other end is one in which the urgency of coming to an agreement to avoid a more expensive and less desirable result is extreme. While both situations involve some issues regarding time pressure as well as the desire for a resolution that feels right to each party, the time concerns of one situation are overwhelming, and in the other case, the need for personal satisfaction with the result dwarfs the time concerns.
One can imagine that all mediation fall at some point on that spectrum and that the strategies used by a mediator may vary depending on how close to either end of the spectrum one is. One can imagine that there are other spectra as well, for example: the need to keep costs to a minimum versus the need to feel personally satisfied with the agreement; the desire to have a result that comports with what the law would provide versus the desire to have a result that is personally satisfying; the parties’ desire to speak for themselves versus their desire to be represented; and the extent to which the parties are in synch regarding their mediation goals versus the extent to which they are not.
So, while one could argue that there are a myriad situations and that different approaches may be desirable in different cases depending upon where the parties are on the various spectra, it is probably not true that there is no good and bad mediation practice. What is probably true is that it is difficult to develop a rule of thumb regarding good and bad mediation practice in the various contexts with the various variables.
Perhaps what can be said, however, is that certain strategies are always desirable to the extent that other factors do not weigh very heavily against their prolonged use: so the attempt to understand the parties’ needs and desires is always good practice. But the extent of the inquiry and discussion may be of shorter duration in situations in which time or cost weigh heavily against their prolonged use. When time and money do not weigh heavily, however, and the parties desire a resolution that is personally satisfying, the mediator should have the ability and the inclination to explore these subjects until a result that is truly satisfying to the parties is achieved.
Similarly, when the goal of the parties is to find a resolution that comports with what the law would provide, a procedure should be developed that will facilitate that happening to the extent that cost and time permit. And when time is of the essence, the mediator should have strategies that move the matter to resolution quickly, while helping the parties find agreements that meets their needs and desires to the maximum extent possible. In contrast, when the parties care more about the discussion than about whether or not the matter is resolved, the mediator should be able to foster a productive discussion without making resolution a necessary goal.
When parties disagree as to the relative importance of time, cost, the role of the law, the need for personal satisfaction, it is a difficult juggling act for the mediator to try to help the parties find common ground regarding the goals of the mediation and to take an approach that satisfies both parties.
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