After completing 30-hour Basic Mediation Training with 23 other incredibly talented and resourceful people, then advanced training in mediating the litigated case and advanced business & commercial mediation training, the answer to almost any question remotely connected to mediation is "it depends." This blog is one approach to answering the question "depends on what?"
The Dispute Resolution Services (DRS) model encourages the mediator to focus strictly on the process. As the Training Manual for Mediators puts it, "Mediation is a process and not an end result."
The mediator uses his or her judgment to "assist" the parties in reaching a fair agreement, but the DRS mediation model insists that it is the parties who participate in mediation who "construct their own mutual agreement." In the end, the mediator must use his or her own best judgment - whether the parties could be trusted to reach their own agreement "depends" in part on the sensibilities of the mediator and the parties.
Some mediators spend part of the time convincing the parties to face reality based on the mediator's analysis of the strength of their position, and part of the time trying to stay out of the way and just focus on process.
Mediation is different "in that it seeks to accomplish a healing of the relationships involved in the dispute." However, "Mediators are not therapists, counselors or social workers. While they are trying to help disputants deal with aspects of their relationships, they are not trying to resolve every quirk they find in either the individual or their family; nor are they advice givers. Mediators are also not police; they may suggest compliance with the law but they do not enforce the law nor do they enforce agreements that disputants enter into between themselves."
On the other hand, the DRS manual, and the court system, define the issue somewhat differently. "The problem," according to the DRS manual, "is that many minor disputes that could be settled by negotiations find their way into the judicial system and take up excessive amounts of time and money and - in the end - do not necessarily settle the problem."
At the same time, according to the DRS, "[m]ediation works for certain kinds of problems and not others. Many disputes properly require a decision by a judge and must involve the adversarial proceedings that attorneys and judges are trained to conduct."
So here's the bottom line. The court system wants to avoid disputes that it could care less about - those involving poor and middle class people and not a whole lot of money. The "problem" from the court's perspective, is that too many disputes tend to bog down a system designed for litigating the most complex and important matters in our society.
Parties want to resolve disputes without having to spend a lot of money on attorneys, experts and trial preparation, and without having to go to court. They like mediation because it protects their privacy, is less expensive, is confidential, and allows the parties control over the resolution. Having a third-party neutral present changes the dynamics of the dispute, and a good neutral can assist the parties in changing the dynamics of their understanding of the what the dispute is really all about.
The court process is designed to cope with the most complex and significant issues we can face -literally life and death situations. The rules and procedures have been refined accordingly. Complying with these rules and procedures is expensive - but if someone's life is at stake, for example, or their freedom, the cost is justified. On the other hand, if your dispute is not quite so serious, perhaps the method of dispute resolution should be less formal and less costly.
A bulldozer can move a lot of dirt in a hurry - but would you rent one to sweep the leaves from your patio?
For some people mediation is merely a less costly alternative permitting settlement of a lawsuit. For others, mediation facilitates insight and healing of relationships. A good mediator can help parties to understand that every dispute has multiple layers or levels on which it can be understood and upon which a more satisfying and equitable resolution may be possible.
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