Mediation is Not Magic

Mediation is the buzz word of conflict resolution. Reading around mediation would make it appear that if you have a conflict, a mediator, like a magician, can wave it away without a frown crossing anyone’s face. The mediator can summon up with his or her powers a win-win solution for everyone. The classic mediator’s orange story. 

But mediation doesn’t quite work that way. It takes hard work, and not just on the part of the mediator. The courts’ endorsement of mediation (to push cases away from the courts) is a great idea, but in doing so the courts and others involved may make mediation seem like an easy option and a sure win. Whilst mediation is usually much cheaper, more time efficient and less mentally exhausting than going to court, it does not equal an effortless path.

Participants to a mediation often come into the process with very little idea of what mediation entails. The participants can see it as a watered down form of arbitration. The mediator will decide but the parties don’t really have to agree to the mediator’s decision. In many mediations much of the first part of the mediation, which includes listening and deciphering the facts of the conflict, involve the mediator reiterating his or her non-judgemental role and the fact that the participants do not have to “prove” their positions to the mediator.

The mediator must be at pains, not just in the introduction but also throughout the whole process, to explain to the participants that they are the ones who are going to have to come up with their win-win solution, and that finding that solution is not always an easy endeavour, and may take some sacrifice and pain along the way. Of course this must be balanced with encouraging the participants along their mediation journey that it is both possible and worthwhile.

Just as in therapy a therapist can only be as effective as the client’s will to change, the mediator can only be as creative to the extent the participants to the mediation are willing to engage in the process. Entering into the mediation expecting results just from entering the room can lead to frustration and unrealistic expectations from the participants. The knowledge that the mediator is there to facilitate negotiation between the parties, and what that can entail, can boost the efficacy of the mediation.

When the going gets tough and the participants are frustrated by the lack of results or new ideas on the table, the mediator can remind the participants of the benefits that mediation can bring them whilst still reiterating the fact that they are the ones in the driving seat as regards solutions.

And, in not being magic, mediation also has limits. In cases of severe manipulation between the parties, abuse and personality disorders, it takes a very specialised mediator to deal with these cases and should not be attempted unless the mediator is experienced in dealing with those specific cases.

Mediation is a wonderful way of resolving conflicts in family situations, in commercial situations and in the workplace, but seeing it as a magic cure for all does it a disservice. We should see it for what it is, a great tool for conflict management that involves hard work from all involved.

                       

Hadassah Fidler

Hadassah Fidler LLB qualified as a lawyer in the UK and then retrained as a licensed mediator both in England and in Israel. She currently resides in Jerusalem, Israel, where she has a mediation practice specialising in mediation for English speakers. MORE >