Mediation And Law, Strange Bedfellows: Time For Us To Start Seeing Other People?

In his recent Mediate.com essay, “Killing Mediation: The Specialized, Professionalized And Neutralized Mediator”, ADR personality Robert Benjamin pronounced mediation dead, naming the usual suspects responsible. (For those who enjoy a good whodunit, you may wish to read how Jeff Thompson, who plays a detective in real life in his work with the NYC Police Department, conducts his own investigation of Benjamin’s allegations.)

As the title of his article suggests, Benjamin is known for iconoclasm, a dramatic flair and a determined willingness to declare the emperor naked (or, in this case, deceased).

If you wash away the fake gore and other Hollywood special effects, Benjamin’s essay contains words of caution to be heeded. He invokes the great promise that mediation offers to consider and address a dispute across many dimensions, in all its astonishing complexity, through a participatory process in which “clients remain directly involved, not merely the objects of professional expertise and treatment”, and in which many issues and needs – legal, financial, interpersonal, emotional, psychological, and more – can be addressed. Benjamin warns that this promise may be compromised in the rush to specialization, citing the rise of “legal mediation” as but one example:

As mediators increasingly specialize in particular dispute contexts or limit themselves to particular practice approaches they close off the systemic focus that is the hallmark of mediation. Those who practice “legal mediation” in the business or legal context tend to use strategies and techniques that are more familiar to traditional case settlement conferences where the focus is solely on the legal solution. That narrow view is not wrong or bad, per se; in some circumstances it may be necessary. However, to have that approach become a matter of habit—or a rut—conditioned by the context in which the dispute is presented often precludes the use of other more creative strategies and techniques…

“Legal mediation” is distinguished from other kinds of mediation, suggesting that those outside law could not understand the nature of conflicts that arise in the legal context and that conflicts that occur in the shadow of the court actions are predominantly legal.

How narrowly we perceive the range of mediatable disputes. Too often mediation is framed as an only an alternative to trial, a dispute resolution mechanism within the machinery of the court, a last-ditch effort to settle a case.

That framework limits our ability to see the full range of possibilities and applications for our work. It’s like looking at the entire world of disputes through the cardboard tube left over after the toilet paper’s been used up. Suddenly your viewpoint has shrunk to a 1.5-inch circle.

There would be more opportunities for mediators if more of us recognized – and helped the public understand – that not every dispute arises in law or offers legal redress. Many disputes that lend themselves well to mediation lie beyond the reach of the shadow of the courthouse.

Perhaps it’s time to pause here, for a moment, and recall the expansive opportunities that mediation holds for those who are mired in dispute and who yearn or struggle to break free. Remember, too, that mediation can be used long before disputes arise, preventatively or diagnostically, to guide planning, negotiations, or dialogue.

Let’s set down the cardboard tube and take an unimpeded look at what’s possible, expanding our vision along with the proverbial pie.

                       

Diane J. Levin

Diane Levin, J.D., is a mediator, dispute resolution trainer, negotiation coach, writer, and lawyer based in Marblehead, Massachusetts, who has instructed people from around the world in the art of talking it out. Since 1995 she has helped clients resolve disputes involving tort, employment, business, estate, family, and real property… MORE >