Goals of Mediation
Fairness and Reasonableness?
Empowerment and Recognition?
An important issue for every mediator is "what is the goal of my mediation process?" Most of us would answer with something like: "helping the parties to reach agreement," and we would be "right. We are not always so good in our actual performance. We sometimes, consciously or unconsciously, narrow the range of agreement that we are prepared to support for our mediating parties.
For example, there is a tendency among those who begin mediation practice to only want to mediate "fair," "reasonable" and "legal" agreements. Many mediators do not want to participate in a settlement beyond the "range of reason." The problem with adopting such standards for the agreements that we mediate is that we may create an implied warranty of fairness, reasonableness and legality for the agreements that leave our office and create substantial liability risk. If we say that we "only mediate fair, "reasonable" and legal agreements," then we may have our mediation clients coming back to us in the future saying: "look at me now, you call this fair, reasonable and legal?" The mediator should thus be wary of in any way guaranteeing the quality of the mediated agreement.
Another example might be a mental health professional mediator who plans to ensure that mediated parenting agreements are reasonably in the child's best interests. If the mediator would say that she would only let agreements that represented the child's best interests out of her office, then a number of parents may be calling as their child gets involved in crime, drugs, drops out of school or commits suicide,
Other mediators have adopted a concept of "transformational mediation." The concept is that, in addition to the goal of agreement, it is appropriate and desirable for mediators and mediating parties to have additional goals, such as empowerment and mutual recognition. Here we have the possibility of a mediator intervening with mediation participants not just for the purpose of helping them to reach agreement. Now it is suggested that there would be additional goals of empowerment and recognition, and these goals would, in part, guide our choice of intervention. Without these goals, all strategic interventions would be guided by whether that intervention is helpful for the parties to reach agreement. Now we might do certain interventions to empower or acknowledge, whether those interventions were necessary or desirable for the purpose of reach agreement.
If the mediator has such "agenda" for the mediation discussions beyond simply helping the parties to reach their own agreement by their own terms, it is critical that the mediator inform the participants at the beginning of the mediation of the mediator's additional goals (such as empowerment and recognition) and the parties, in deciding to proceed with the mediation, must make an informed decision that those are specific services (in addition to the pursuit of agreement) that are desired.
From another perspective, that of "strategic mediation," it may be that these concepts of mutual recognition and empowerment are "much ado about nothing." Mediators commonly choose to utilize techniques that empower and, perhaps, also create some measure of mutual recognition, not necessarily because empowerment and recognition are the goals of mediation but, rather, because it is the mediator's perception that empowerment and/or recognition is the specific intervention at that point in time that will best assist these participants to make progress toward agreement. In other words, it is suggested that the mediator will commonly utilize empowerment and recognition techniques and strategies not necessarily because the mediator has empowerment and recognition as goals for the mediation but, rather because the mediator believes that such accomplishments will assist the participants to reach what they perceive to be their best agreement.