Many mediators practice consistently with our intention to support party self-determination throughout the process. These mediations tend to be very meaningful to the parties and tend to lead to profound shifts in how parties see the situation, themselves, and each other. They also tend to lead to settlements that all parties are genuinely, lastingly at peace with. But in the world of litigation, mediations continue to be far less effective, meaningful, and empowering than they could be. Many mediators who work on litigated cases continue to use methods that undermine self-determination, that interfere with inter-party recognition and that cause the process to be far less satisfying. Here are 5 reasons that these less effective practices persist.
1) Tradition. Many mediators of litigated cases gained their understanding of mediation by observing settlement conferences conducted by judges. Judges, motivated to avoid trials, exerted their authority to motivate parties to compromise. Their authority, and the implied threat that it carried, succeeded at causing parties to forego their idea of justice, and to compromise. This perspective on mediation does not take into account the experience of the parties or the possibility that mediation can be meaningful – it sees mediation as simply a way to avoid trials.
2) Referrers’ Expectations. Even mediators who are aware of the potential for an empowering mediation process have incentive not to provide such a process. Since litigators are usually the ones who suggest the mediators, it can be good for business to meet the litigators’ expectations, as opposed to the parties’ hopes. Even frequent parties have come to expect a settlement-conference style of mediation. So the only participants who are surprised by how frustrating and disappointing this style of mediation is are parties who have not litigated before.
3) Need to Appear Valuable. There is a big difference between what is valuable to people in conflict and what appears valuable. We are accustomed to assuming that talking a lot and taking control are what people pay for. Since effective mediation requires more listening and letting go of control, many mediators lack the courage to do so, for fear of the appearance it creates.
4) Lack of Skill. The skills used in settlement-conference-style mediation are the same ones lawyers use, e.g., speaking persuasively, offering carrots and sticks, and acting as if one knows what others should do. To become an effective mediator, I, myself had to unlearn these skills. It’s hard to learn the skills required for effective mediation (deep listening, precise and nonjudgmental reflection, maintaining the focus on the parties rather than oneself). One doesn’t learn them practicing law, and often not practicing therapy, either. Learning to be effective as a mediator requires the acquisition of these new and very different skills.
5) Failure to Make the Philosophical Shift. Effective mediation requires the belief that parties can and should make their own choices. And it requires an understanding of what it looks like when parties are making their own choices. Elsewhere in life, it’s common to focus on whether people are making the right choices. It’s common not to pay attention to the decision-making process, but only the outcome. If someone makes a decision we agree with, we often aren’t interested in whether they really made the decision or whether they arrived at it through deference to someone else. Unless one has made the shift to believing in parties’ own decision-making, it is easy even to unintentionally push parties in the direction we prefer.
Despite the challenges, supporting parties’ self-determination is crucial because it is what makes mediation both unique and valuable as an alternative dispute resolution method.
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