Preventive Mediation

Undoubtedly for centuries the word mediation has been tied to conflicts. Mediation is considered a form of dispute resolution. And definitions of mediation describe it as a process of resolving conflicts. This perspective, of course, limits mediation to something that can occur after a conflict has developed.

I contend that we are limiting ourselves to think of mediation as useful after conflicts have developed. I contend that we need to consider a new form of mediation I call “preventive mediation.”

Consider what mediators are trained to do. Mediators are trained to help people establish objectives. Mediators are trained to help people through a problem- solving process. Mediators ae trained to maintain a climate conducive to working together. Mediators are trained to help people think creatively. Mediators are trained to help people consider and redefine their relationships. Mediators are trained to help people develop general agreements into specifically defined and workable agreements.

These skills make cooperative dispute resolution a reality for millions of people dealing with conflicts. But those same skills can help people avoid conflicts in the first place.

For example, assume a successful family business. While things are going well, that may be exactly the time to work with a mediator to consider the “what if’s” of succession before that becomes an issue that can threaten family relations. Or, assume a couple in their 40s recognizes that in a few years their parents may face the challenges of aging. While all family members are healthy that is exactly the time to consider the ”what if’s” of the issues the family may face when the parents experience medical challenges.

In other words, the “what if’s” are the precursors of disputes. Preventive mediation brings those issues to the table when the parties are not stressed and emotionally involved in a conflict. Preventive mediation is particularly helpful with situations such as long term care, life estate planning, and business succession.

Another example will illustrate the concept: The mediation involved two neighbors. One neighbor, who we’ll identify as “Fred” in this case study, had owned his home for more than twenty years and the second neighbor, who we’ll identify as “Yosei” had only recently moved in. Their homes were on an incline with Yosei’s house above Fred’s.  For as long as Fred had lived in his home there was one shared brick fence in the back yard only up to about the rear of their houses. The remainder from the end of that shared fence to the front street was grass with no boundary markings. For years each mowed their property and had no issues.

One day Fred saw contractors in Yosei’s backyard filling in the pool and tearing out the remaining turf in preparation for covering Yosei’s whole backyard with concrete and tile. Fred realized that with all of Yosei’s backyard covered all rain water would drain directly into his yard and probably into his house. Fred spoke with the contractor who basically told him to talk to Yosei.

Let’s look at possible outcomes. Eventually a heavy rain would most likely cause damage to Fred’s home. He could ask Yosei to do something to prevent water runoff. If Yosei refused and when a heavy rain did cause damage to his home, Fred could sue his neighbor Yosei for damages. Legal action would be expensive and damage whatever relationship he might have with his neighbor.

Instead, Fred asked for preventive mediation. Fred had not experienced any damage and had no claim against his neighbor but he was suggesting preventive mediation in case a heavy rain did do damage to his home. Because nothing had happened yet, neither party was aggressive nor defensive. Both were willing to engage in preventive mediation to deal with the “what if” might happen after a heavy rain and what could they agree to now.

With their mediator the parties agreed that Fred could build and own a retaining wall on the edge of Yosei’s property running from the existing brick fence to divert water to the street. Yosei further agreed to support the application to the city for a permit for the retaining wall.

And as it would happen within a few months after the retaining wall had been built a heavy rain hit the area. But that retraining wall from their preventive mediation session diverted the rain water to the street and saved them both time and money and saved their relationship as neighbors as well.

Some may question if preventive mediation is simply facilitation. A facilitator typically helps parties be more clear in their communication without providing the problem-solving process the mediator does. Preventive mediation deals with the “what if’s” before they become destructive conflicts.

The benefits of mediation shouldn’t be limited to the resolution of conflicts. Preventive mediation can help parties avoid conflicts in the first place. There is no better way to use mediation.

Fred E. Jandt

Fred E. Jandt is a professor at California State University, San Bernardino. He publications include Win-Win Negotiating (Wiley, 1985), Constructive Conflict Management: Asia-Pacific Cases (with Paul B. Pedersen, Sage, 1996), and Alternative Dispute Resolution for Paralegals (Anderson, 1997). He teaches mediation in the Dispute Resolution program at the University of… MORE