No Respect For Traditional Mediation

Or: What’s more important? The Parties, or the Mediator?

Interestingly, the future of mediation is being altered by supposedly improvements in process, mediators, and justified potential results. 

After watching mediation “How to” videos, mediation may well be still in the obituary state.  Does a mediator really need to know the root cause of the disagreement, the law, or separating the parties as a natural event when the parties’ tempers get high in the process? Now comes AI to add to the problem.

For me, and maybe some of you this is lack of respect for the traditional mediation process. The mediators are thinking for the parties. Mediators today use “style” to get the agreement. Why not manage the parties in moving toward agreement? This is not more difficult to do then, currently walking back and forth guiding the parties to the mediator’s idea of a compromise that is supposedly the right thing to do.  Where is party self-determination? It’s lost because mediation is now under the legal experiences of the mediation crop.

Granted, mediation is the answer to a coming agreement between the parties. Yes, it is an assumption but should be based on the traditional mediator approach to mediation and those results based on self-determination by the parties.  Self-determination has to be there or “it ain’t”mediation , and only not just “informed consent.”

After watching some explanations on how to start a mediation, which is also part of the problem, it appears that introductions are a bad thing and very limited.  

Many of the videos talk about the role of the mediator and then move into separate rooms where the the mediator becomes the go – to – person, the suggester, and the evaluator because the mediator has the information and carries the word back and forth, but this creates a problem.  Parties can’t listen to each other speaking about their need.

So what is missed at the beginning?  An explanation of the role of the mediator and of each party, usually, the role of the counselors, too. And what are the roles? Start with  the mediator, neutral, and their role in assisting both parties to come to agreement, then comes the role of the parties, talking about what each “needs” to come to agreement. The mediator explains the roles to the parties. One, is to speak in “I” messages thus avoiding argumentative comments and judgments. Two, listen and take notes if necessary, and express your need to end the conflict. Three, both parties will offer Options to achieve agreement.  Many lawyers will not agree.  Why? Ask yourself why do you want to speak at the joint table?  A very good court lawyer once said, “If the money is substantial I will speak, regardless. That’s a reason, but really not valid. The client should have been prepared by his counsel. There’s notes and a caucus if the lawyer needs to speak with his/her client. Disrupting at the joint session is a no-no. 

The speaking for the client happens in PI cases. Which are erroneously called mediation. Remember the movie “The Godfather?” In a scene – the Dons sit at a joint table, with their Counselors sitting against the wall on call by their Don. Traditional mediation resembles that. Counselors remaining silent until needed by their client, but not speaking for them.

What about responsibility? After watching YouTube for awhile I see the mediator is taking all of it. Yet, parties are the responsible ones.  But they don’t get to express themselves at the joint table, because there is no joint table.

This is hard to take for some. PI negotiations, is an example of speaking for the  party. What seems a preferable result is “Compromise,” the mediator feels a compromise is a winner but don’t think the parties think their needs were met. “Informed consent” happens as a result of evaluation by the mediator. And so compromise exists. All the mediator’s doing.  

The rest of the problem is –  almost everybody views change as necessary. New approaches to mediation make the mediator more important. Yes, everybody thinks so. And AI is entering the process, too. More of less self-determination for the parties, but is it really? A solution is generated by AI. In a recent article the author lamented the fact AI could not determine emotions or intentions. Still, we’re ready to accept AI.

Actually, mediation is a way for each party to approach their need to end the conflict. Letting them engage each other is the traditional mediation way. The mediator’s role, keep the parties talking and aiming toward agreement letting them make the decisions to get it done.  

Some will say a mediator needs to know the law. Why? What are the counselors for?  The classic, “What would the judge say?” Is not relevant, because the judge’s role is not to second guess the party’s agreement. The judge declares it’s legal or it’s not. Amen.  A mediator really needs to know, psychology, sociology, NLP, NVC, management approaches, and leadership methods, also William Eddy writes some good stuff about party personalities.  With this knowledge mediators are better equipped to work any mediation, face any breakdown in discussion, and moving the parties  toward agreement. 

Traditional mediation is simple in set-up, opening, feedback, and possible guidance (re-framing), simple rules, and more open ended questions. Do any mediators when asked to offer a suggestion, say,”As I said at the beginning I am neutral and can’t offer a suggestion?”

The problem is getting lawyers/mediators to convert to party self-determination as the modus operandi in mediation.  Not evaluations and suggestions. There’s no “style” in mediation. There is one format and many, many routes that the parties will take with the mediator as their Sherpa. Mediators stay busy in joint session.  

Maybe, I just won’t bother worrying about the loss of traditional mediation, anymore and go fishin’.  Maybe, not.

Paul Rajkowski

Paul Rajkowski was born and raised in the Chicago area. After serving in the USAF, he graduated from St. Mary’s University of MN in 1967. Paul went to work in the printing industry as a sales representative in the printing ink division of a national company, eventually earning a sales manager… MORE