Who Says That Mediation Needs Reclaiming?

 

A confidential…form of structured negotiation designed to help clients reach an informed agreement with the assistance of one impartial mediator… the goal of mediation is to reach a fair and lasting agreement, one which will be approved by the appropriate court and allow the clients to divorce.[2]

 

That sounded right to us then, when we were devoting most of our professional lives to traditional lawyering and trial of family law matters; and it rings just as true today as full time private dispute resolution providers.  Yet, some in the mediation world, as indicated by recent writings in the excellent Mediate.com newsletter, seem preoccupied by what they see as the troubled state of the practice today.  Mediation, they lament, has failed to deliver on the promises that someone made, somewhere in time. Based on our experience here, in Massachusetts, we ask ourselves, “where’s the problem?”

 

An example of mediator teeth-gnashing is the December 3, 2014 (newsletter #558) piece “Reclaiming Mediation’s Future:  Getting Over the Intoxication of Expertise, Refocusing on Party Self-Determination”, by Robert A. Baruch Bush and Joseph P. Folger.   The authors claim that the “first premise” and “central value” of mediation is self-determination (a/k/a empowerment), a value now lost to the field’s “capture” by courts “and other authoritative agencies”.   As a result, Bush and Folger see a practice surrendered to “… the case-settlement goals and practices favored by their ‘hosts’…”  Mediators, they argue, have become:

 

… intoxicated by – and ultimately addicted to – the drug of the problem-solving culture, the culture of expert fixers, protectors and problem-solvers, who offer to take away the pain and frustration of unmet needs and tangled problems, applying their well-trained skill sets to accomplish wonders for eager clients who would otherwise suffer.

 

Further, the authors assert that mediation cannot succeed in an environment that does not include compulsion by the courts (mandatory mediation),because the field has lost touch with self-determination, sacrificed at the altar of egoists who patronize their clients with received wisdom instead of pure self-determination.

 

Bush and Folger self-describe as transformative mediators.  This explains their instinctive recoil from problem solving.  Mediation is a large enough tent to include their priorities, but from our seat, Bush and Folger are wrong on nearly all counts.   Every day, and every way, we seek to empower our clients by advancing three principles that our trainers espoused:  voluntariness, informed understanding and mediator impartiality.   To that, we add the rule of reason, promoting effective agreements that judges will approve.[3] To our lights, if we fail on any one of these, we have fallen short.  As we remind clients from time to time, we can guide a fair, amicable and efficient process; but, if the end result eludes the range of reason that the law demands for the grant of divorce, we have materially failed.

 

Must we be vigilant at all times against substituting our own judgment for those of the parties, even subtly? Absolutely.  Do we need consistent focus on client-generated options?  No question.  Are we obliged to jealously safeguard our impartiality? Certainly.  But, does this make us a help-free zone?  We don’t think so.

 

In Massachusetts, mediators span the process spectrum:  we lawyers, psychologists, social workers, and others.  Do any of us check our expertise at the door? We hope not; and, more importantly, we firmly believe that few clients would want that.  We are a large, diverse and welcoming community. Some of us “intervene” more than others in session. We use differing levels of evaluation. Clients and lawyers tell us what they need; and when we are self-aware and honest with people, we let them know in advance where we stand on these various spectra.   If we feel that our core principles are inconsistent with the requested service, we decline the engagement.  Otherwise, the public defines its needs, not theorists who eschew problem solving.

 

John Fiske has always taught that the more people mediate, the more people will mediate.   We are all busy. Just look at the attendance and participation in MCFM programs;and, Massachusetts has no mandatory mediation.  Mediation has not grown here by compulsion, but by a maturing appreciation for options, and encouraged, for sure, by serial court crises.   In the end, options are what create empowerment and self-determination for people. Transformative mediation may serve a few with a of purity of spirit, but certainly not the many who need to get on with the business of life as best they can when their family structure comes crashing down.  Think psychoanalysis versus time-limited psychotherapy, and you begin to get the drift.  If mediation is arbitrarily limited to the transformative, neither compulsion nor market forces will cause critical mass in demand.

 

So, no thank you to reclaimation. We are not lost; and if we are, we are happy not to be found.

 

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