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Mediate.com

Is Mediation The Right Word?

by Diane Cohen
March 2010 Diane Cohen

There has been a debate going on in mediation circles for many years about the validity of different approaches to mediation. In recent years this debate has been muffled, but still lingers beneath the surface. It occurs to me, however, that some of these differences are not differences in style, but actual differences in the services being offered. Some mediators are offering hybrid services, perhaps without being aware that they are doing so*.

Hybrid services are almost by their nature services in which a consultant either offers an opinion on a matter central to the mediation, provides a context for understanding the issues in the mediation (which by its framework thereby offers a “view” or an opinion of the situation), or applies some kind of pressure on the parties to come to a particular resolution. In the examples below, I will demonstrate the basis for this belief.

Parties who consult the providers of hybrid services, should in general be aware that the balance of power may shift in the room and one party may feel pressured to come to an agreement that is in line with the views of the other party if those coincide with the views of the mediator. This type of “mediation” would then be mid-way between facilitative mediation and arbitration.

In addition, the providers of hybrid services are often individuals who have not devoted an extensive amount of time or thought to developing mediation skills and may rely on a combination of subject matter knowledge and “pressure” to move the parties toward resolution. This would deny the parties the opportunity to come to a resolution that is truly their own.

Parties who do not want the mediator’s opinions to influence the results of the mediation are better off consulting a facilitative mediator who will generally take pains to maintain neutrality and avoid offering or even developing opinions on the matter at hand. Of course, one could argue that parties should be able to obtain the services they desire and they may like the idea of a hybrid service. Complicating this decision, however, is the fact that parties who are new to mediation rarely know what the mediator is likely to do or how a mediation should operate. And parties who have experienced mediation may change their views and assumptions about what mediation is or what a mediator should do. Thus the opinion of parties as to what they want or expect a mediator to do will most likely be different before experiencing mediation than it will when the parties are experienced in mediation. Parties may initially feel that they want a mediator to offer an opinion, but may change that view after experiencing mediation.

The bottom line in this analysis, however. is that to the extent that hybrid services are appropriate, it would be helpful to the public as well as the mediation community for the purveyors of hybrid services to recognize that their services are hybrid and to publicize them in that fashion. Or, perhaps, after analyzing their services, the purveyors of hybrid services may decide to choose whether they are intending to offer consulting services or mediation services, rather than combining the two. In this way, mediators, consultants and the other professionals can all co-exist, find their appropriate niches and avoid stepping on one another’s toes while providing the best possible service to the public.

The following is a list of some of the hyphenated roles that a “mediator” may actually be playing. The first three listed are encountered frequently in the mediation world. Among the remaining categories listed are services which I presume are or could be offered and my impression of how such services could be described. In each case, I raise some potential concerns. It should be noted that although a particular hybrid service may give rise to potential concerns; this is not to say that a trained lawyer, therapist, financial expert or other professional can not be an effective facilitative mediator when they are not playing a hybrid role. Clearly, the role of facilitative mediator is available to any individual who is trained in that field and devotes the time and effort to developing skills in it, regardless of any other profession they may also be engaged in.

Facilitative mediator.

The one type of mediator that does not require a hyphen is the facilitative mediator. That is because the facilitative mediator is focused on helping the parties come to a resolution of their own choosing without interjecting the mediator’s views. If legal or financial information is needed by the parties, the parties consult with other professionals to obtain it.

Mediator – divorce consultant.

Mediators who provide services in a specialized field, such as divorce mediation, often act first as consultants, providing information on the framework of the mediation and the general issues to be addressed, and even offering specific ideas and suggestions. When acting in that capacity, they are divorce consultants. When disagreements arise between the parties, they shift gears and become mediators. The dual roles as consultant and mediator offer the potential for the mediator to influence the outcome of the mediation by changing the balance of power in the room to the extent that the mediator’s view of any matter aligns more closely with the view of one of the participants. The practice of having parties come to the mediation represented by attorneys or at least having consulted attorneys can ameliorate this and can avoid the need for the mediator to act as both mediator and divorce consultant. The parties would then be free to choose a facilitative mediator, highly trained and skilled in the process of mediation.

Mediator -- legal consultant.

Lawyers who have a great deal of experience in a particular legal field often decide to branch out and become mediators. When these attorneys mediate, however, they often do so without a great deal of mediation training, and instead rely on their expertise as lawyers. Thus, their primary contribution is to inform the parties of the law, industry practice, or their experience in the judicial system. When parties disagree, they switch hats and try to mediate the disagreement. However, they may not have the skills to help the parties communicate clearly and work through their differences.

In addition. It should be recognized that it is often impossible to make a clear yet helpful and accurate pronouncement on some legal issues. Different lawyers will describe the likely outcome or the range of outcomes differently in many situations – the law is not precise enough for a legal expert’s sole opinion to be a guide. A sole opinion may be more useful in situations that involve precision (perhaps some issues in engineering or finance) or extremes (where even the law may be clear), but in most cases where there is a real and valid controversy, a sole legal opinion will not do it justice or provide a framework for useful debate between the parties.

A way to ameliorate this is for the parties to be represented by attorneys in the mediation and for a facilitative mediator to mediate between the legal views of the attorneys as well as the views of the parties. That way, the parties can develop an understanding of the legal issues and can, themselves, determine what they believe to be the appropriate legal outcome (to the extent that they wish to be guided by the law).

Mediator - financial consultant.

It is possible for a financial expert to provide information and a framework for a dispute that centers on a financial matter, and then to take on the role of mediating any aspect upon which the parties disagree. As in the other contexts, however, the framing of the issues by the financial expert and any opinions he or she espouses will have an effect on the outcome of the matter and will change the balance of power in the room. A way to remedy this is to have the parties each retain their own financial experts or agree on a financial neutral and have a facilitative mediator mediate any disagreements.

Mediator – organizational expert.

A consultant in workplace disputes may inject his knowledge of organizations to guide the process of mediation. Injecting his knowledge will have the effect of changing the balance of power in the room and may affect the outcome of the mediation in a way that may feel unfair to one party.

Mediator – patent expert (or expert in a technical field).

A patent expert may use his knowledge of patents to opine on the validity of a patent in a patent dispute. These two roles seem incompatible unless the patent expert is simply used to understand the perspectives of the parties rather than two opine on them. To the extent that the patent expert is used as a mediator precisely so that he or she can understand the issues being discussed, this role may not truly be a hybrid role, and may in fact be a pure mediation role, conducted by someone in a position to understand the parties. This is so as long as the patent expert does not offer opinions.

Mediator- doctor.

As in the patent situation, these two roles may be incompatible if the doctor offers opinions rather than using his knowledge to understand the matter at hand. It may be difficult for the doctor not to offer an opinion on a medical matter.

Mediator-architect.

Similar analysis to the mediator-doctor situation.

Mediator-construction or engineering expert.

Similar analysis to the mediator-doctor situation.

Mediator – clergyperson.

When the clergyperson acts as a mediator, there is no conflict of roles. When the clergyperson acts as a religious expert, however, there may be an affect on the outcome of the matter and a change in the balance of power in the room.

Mediator – child expert.

Expressing an opinion about the appropriateness of a parenting plan or other child-related issue may have an effect on the balance of power in the room and may change the outcome of the mediation.

* In this article, I exclude such hyphenated services as med-arb and arb-med, since they do not purport to be categorized as solely “mediation”.

Biography


Diane Cohen is a mediator in private practice and writes regularly on the process of mediation. Diane is an impasse mediator, and therefore mediates in all realms, but primarily in the family, divorce and workplace areas. Diane is a former co-president of the Family and Divorce Mediation Council of Greater New York. She has a J.D. from Columbia Law School, was certified as a community mediator by the Unified Court System in New York, and is a NYSDRA-certified mediator. She conducts workshops for mediators who want to work on their mediation skills.



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