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Susan Oberman, Charlottesville VA

07/01/09

Norm-Educating Mediation

Thank you for this article discussing Ellen Waldman's typologies and the concerns about the lack of attention in mediation to rights that have been hard won over centuries. I have highlighted Waldman's work in two journal articles (available at my web site www.commongroundnegotiation.com) in which I argue that she has made sense out of the ongoing confusion about what mediators do. While mediators say they do not make judgements, (they merely "facilitate"), there are layers upon layers of individual perspectives we each bring with us (as Judge Sotomayor has recently articulated), of which we are often unaware. For example, how can mediators call themselves "neutral" (regarding the outcome) and at the same time have a bias for joint custody? Indeed, referencing norms is what we do all the time. We have figured out a clever way to disguise this by using the term "reality testing." What reality? Whose reality? As a practitioner of norm-educating mediation, I subscribe to the notion that telling people up front what norms we are referencing is preferable to the (false) claim that we are neutral. I also think it is incumbent upon mediators to understand the history and context in which we operate, not only the legal context, but the use of mediation to deflect criticism away from the court's failure to dispense justice. I conclude in my article "Style vs. Model: Why Quibble?" 9 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL, No. 1, 1, 62, (2008) that mediators need to do some reality testing about the reasons behind the court support of mediation.

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