Mediation is a wonderful process and I love mediation but I do not want to see it get more complicated with “what mediators need to do” kinds of stuff. Referred to as “styles”–mediation need not be about styles. Let the style guys spend time studying the format of mediation and become great at mediation responsibility. I love mediation because parties get to probe, understand, make choices, create options and arrive at mutual decisions, saying how they feel about this conflict. I can watch all this unfold and am able to support their effort when necessary. The parties take responsibility for coming to resolution. In every mediation responsibility exists for everyone in the room. And sometimes, it’s true, the mediator has to fight, nudge, cajole to keep them working together and supporting their responsibility in ending the conflict. That is the mediator’s role and they must take responsibility for it.
For many years now, the movement toward avoidance of individual responsibility in mediation increases. It starts with the mediator not controlling the process and continues when the parties enter separate session they send responsibility out the door. Self-determination goes with it. It is like we have a “living mediation.” Similar to the current calls for a living Constitution. It is something I do not love. And the parties don’t know the consequences of their action. One consequence is the lost satisfaction of making decisions. This loss was otherwise a character builder. Irresponsibility means no self-determination in the mediation and no party decision making and no joint session. The parties go to separate session and let the mediator and the lawyer convince them of the path to take.
When I write about what I love the response around mediation is “One Size Does Not Fit All.” We’re not trying on shoes. We’re using a process that has all the creativity in the world for the parties and in this sense is a one size that fits all. However, we’ve made mediation full of exceptions to no one’s benefit. The “One Size Does Not Fit All” applies to nothing and means nothing. It is said by those wanting to preserve “styles.” It’s a reaction, not a response. The parties taking responsibility create their own agreement. The mediator taking his responsibility, facilitates, and the lawyers take their responsibility and counsel the best advice to their client. There is now a course being taught that labels the lawyer a participant as a third party in the mediation. Imagine the lawyer as having a conflict. Seems like a misuse of the mediation. Now we have plenty of confusion. Lawyer/client, lawyer/party (as counsel), and now lawyer/lawyer (as party in conflict.) Whole lot of twisting on interpretation of mediation.
In life we are responsible for ourselves. We don’t decide and nothing gets done. Our daily efforts are responsibility filled with choices good or bad. Name it and there is responsibility. Mediators train to do family, civil, or domestic violence mediation. They get listed in their state as an approved mediator. They learn the process. They learn where responsibility lies. They are in the field of mediation and find the process is different from what they learned.
What Has Changed?
The mediation process changed. Yes, there are mediators holding out for joint session, but for the most part mediators are being encouraged to shift to letting the party choose the process with mediator and counsel thinking that’s helpful to the party. This is now being taught in mediation training. Everybody gets up and goes to their corners and the mediator shuttles. Where is the responsibility? The mediator and the lawyer have taken the responsibility away from the party. Those who are lawyers, for a minute, return to law school and the classroom and reflect on the experience. Anyone recall a professor in any class letting a student teach the class? Probably not, but that’s what’s happening in mediation. The parties are picking the process and the mediator is giving up the role of professor. The parties in conflict need to discuss their conflict, not through a mediator but face to face. My boss used an example of responsibility. She would say to the party, in a role play, “I know just the type of car your son should drive when he goes to university. It will be the trendiest color and model, it will be accessorized to the max, and it will be a convertible. So, get out your checkbook and you can buy your son’s ride to university.” Nobody accepted that offer. The point is whether you choose a car or speak for yourself being responsible for the outcome is your role. Lao Tzu said (translated by several translators), “The highest type of ruler is the one whose existence the people are barely aware of.” Place that thought into the mediator and facilitation happens. Again, Lao Tzu, “The Sage is self-effacing and scanty of words. When his task is accomplished and things have been completed, All the people say, “We ourselves have achieved it!” As some streetwise person might say, “Now that’s what I’m talkin’ about!” The mediator controls the process and the parties control the outcome. Some mediators and lawyers just can’t stay out of the outcome part.
Sometimes, in pre-mediation, if there is one, excuses are made for not being in the same room. These excuses by the parties or their lawyers may hide fear, ignorance, lack of courage, and “I can’t be in the same room with that jerk.” You see they are making choices prior to mediating. Master mediators having leadership and coaching skills in their toolbox can work this out with the parties. Parties will realize needing to speak for themselves is very important. It is mediation as it was intended. Leadership/ coaching skills of the mediator build courage in the party to work in joint session and take responsibility. We all remember shoulda, woulda, and coulda about something not tried or said. After the mediation this memory can linger all too long in each party and in reflection by the mediator. In mediation the parties “should” attempt to discuss the conflict. With the mediator’s help “would” attempt to discuss reaching resolution. And they “could” resolve the conflict in joint session. They are in the moment and exhibiting courage and responsibility. No bad lingering retrospect of this type mediation. The parties can say, “We did it ourselves.” It’s Lao Tzu for real and now.
Nearly all mediations involve parties that view the same facts in a very different light. But in a great many mediations, the parties go further: they are convinced the other...By Jonah Orlofsky