A Critique of Mediation, Challenging Misconceptions, Assessing Risks, And Weighing The Advantages

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Only a few years ago, mediation was regularly confused with meditation, medication, or
arbitration, another mode of conflict management, but a distant cousin. The confusion was not
limited to the public, but extended to lawyers, judges, and mental health professionals as well.
While some confusion remains, the proliferation of legislation, court programs and the public
profiling of mediation services has minimized at least the most raw forms of misunderstanding
about the mediation process. The discussion has now shifted to who and when should parties in
conflict mediate and how should that mediation be done. Parties are often confused and fearful
of losing their rights and being taken advantage of. Lawyers frequently believe their clients will
be at risk, and they will lose business. Courts must be sensitive to monitoring fairness and the
rule of law, and moving cases. Mental health professionals like the concept of settling conflicts
in a less adversarial manner, but they are concerned for their clients well being and often
confuse mediation with counseling. And, mediators run the risk of overselling themselves and
the process and sometimes are not clear about their role as a mediator as opposed to a counselor,
lawyer, or other expert. For mediation to be fairly evaluated, legitimate concerns need to be
separated from misconceptions about the process; then the risks can be properly assessed and the
advantages weighed.

THE PARTIES CONCERNS

The simplest definition of mediation is a negotiation process between three (or more)
parties: the two disputants and a third party mediator. The mediator has only the authority the
parties allow him or her. The mediator effectively negotiates his or her authority with each of the
parties and in turns helps them negotiate between themselves. More formally, the mediator
facilitates the informed and consensual management of the issues or conflicts that are presented.

Mediation is safe. Many people are concerned that they will not be able to negotiate
effectively with the other party and they will lose. This is so especially if one party appears to be
an experienced negotiator and the other party questions their ability to negotiate. If the
mediation process is conducted properly, there are four reasons why no party can lose or
compromise any right or interest they have in the mediation process:

1.) The mediator has the professional duty and responsibility to protect both
parties; that means he or she will assure that both parties have all necessary information, know
the issues, know the available options, and, know the pros and cons of each option. The
mediator is not neutral; it is his or her responsibility to make sure both parties are heard and to
ask hard questions of each of them. The mediator is not disengaged, or hanging back and above
the fray, but actively involved to assure that neither party is being taken advantage of.

2.) The parties are strongly encouraged, (and are often advised or directed), to
obtain professional advice from attorneys, accountants, financial planners, or counselors at
any time they wish in the course of the mediation process. No tentative understanding can
effectively become an informed agreement unless access to professional consultation is free,
unfettered and encouraged. Any mediator who in any way discourages professional consultation
by a party in the course of mediation should be viewed with suspicion.

3.) The parties will not be asked to sign, initial or in anyway formally execute a
proposed mediated memorandum of understanding. Therefore, no party is allowed to become
legally obligated to an agreement. After each party has reviewed the memorandum and/or
consulted with their individual attorneys, only then will each of them decide if they wish to be
legally obligated–but that does not occur in the mediation process. Accordingly, no mediator
should ever allow any party to sign, initial or otherwise formally execute an agreement in
mediation. For a mediator who is not an attorney, allowing signature is tantamount to the
unauthorized practice of law; for the mediator who is a licensed attorney, it is a violation of their
professional duty as a mediator.

4) Any or both parties are free to withdraw from and terminate mediation at
any time, for any reason, without consequence or sanction of any kind. The process must be
voluntary if it is to hold any integrity and, each of the parties is the sole arbiter of that
determination. While a party may decide to remain in mediation because he or she has
determined there are few other options, that is fundamentally different from feeling coerced to
remain in mediation.

Mediation makes good business sense. Many parties think they can mediate only if the
other party is “reasonable” like they are, or they are on good terms. That is not accurate. People
who are distrustful and, even angry with the other party or parties can still successfully
mediate an agreement. Clearly, if business people can negotiate their differences, or employees
and management can come to agreement, or if the Arabs and Israelis can work out a peace
accord, parties to a divorce can do the same. For most people, with the protections in place, the
negotiation of disputes makes good business sense. Mediation is less about cooperation and
good will, than it is a matter of good business. Trust and good will are certainly helpful, but
not necessary for settlement to be reached Mediation allows people the opportunity to more
directly control the decision making about their lives–their money, property, and children.
Mediation does not make sense in one of the parties is so preoccupied with “winning,” and
“winning” means to him or her destroying the other party. However, few people operate from
this flawed perspective. By contrast, most people in conflict will at some point say and do silly
and defensive things when they feel threatened and out of control of their lives. The majority of
people who have the normal apprehensions when faced with the stress of conflict should not be
confused with those who operate from the more extreme perspective. Mediation often helps to
minimize the unnecessary hurt and anger that often occur in the midst of a conflict.

THE LAWYERS ROLE AND RESPONSIBILITIES

Mediation offers new roles and opportunities for lawyers, both to become mediators, but
as well, to become more effective and appreciated for their legal expertise. Lawyers play an
important role in assuring the integrity of the mediation process. Parties cannot make competent
and informed decisions without sufficient legal advice. Most attorneys review the proposed
mediated agreement with their clients and assure they understand the issues. The key difference
is that the role of attorneys in mediation is that of a consultant to their client; they do not
act as they otherwise do in their traditional role, as the primary negotiators of the
agreement. Mediation allows attorneys to do what they do best, and most commonly do in other
kinds of legal matters: give their best advice, leaving the decision-making responsibility to the
clients.

Too many people mistakenly believe attorneys get rich handling divorce cases; the most
cynical even believe attorneys are only out to generate higher fees at the clients’ expense. This is
seldom the case; most attorneys are focused on protecting their clients interests, and, as they are
trained to do, think defensively about everything their experience has taught them can go wrong
despite the best intentions. Most attorneys, however, recognize that most people cannot afford to
pay high attorneys fees, and oftentimes they are not fully paid for their services. By contrast,
attorneys representing clients in mediation are likely to be paid their full fee, and what is more,
the client is often more satisfied with and appreciative of their services.

Mediation does not take business away from attorneys. While they may bill fewer
gross dollars for their services, they collect significantly more, and obtain more business as a
result. No competent and experienced mediator will denigrate the work of attorneys or
discourage clients in mediation from consulting with counsel.

The attorneys’ responsibility is to advise their clients as they see fit and leave to the
client the responsibility of making their own decisions accordingly. The more complex the
matter, the greater the importance of the attorneys’ consultant role in the mediation process to
assure the parties are fully informed of their rights and responsibilities. The mediator cannot
give legal advice, and does not supplant or duplicate the attorneys’ role. The whole matter is still
likely to cost less because the parties remain the primary negotiators.

JUDGES, COURTS AND MEDIATION

The mediation process is appreciated by many judges for two reasons: first, cases are
resolved more quickly and effectively and are less likely to require further judicial attention and
that reduces judicial caseloads. Second, many judges do not enjoy making personal decisions
that affect other peoples lives and especially the lives of their children. They will if they have to,
but know that the determinations they make will never be as effective as the decisions parties
might make for themselves. Most studies have confirmed that people are more satisfied and
likely to comply with agreements they have developed themselves as opposed to agreements
negotiated by attorneys for them or the determinations of a judge after trial. The latter will be far
more likely to require further legal action for enforcement.

However, for mediation to work, judges must respect the rights of the parties to make
their own decisions and not intrude on the mediation process more than is absolutely necessary.
In court mediation programs, sometimes the court or a judge will set rules for what can be
mediated and set requirements about how that mediation is to occur. Sometimes courts gauge
the success of mediation solely upon whether or not there is an agreement. If people begin to
feel that they are being coerced to mediate an agreement that fits the courts’ expectations, the
process of mediation will begin to look like a sham. It is the courts’ responsibility in the design
of the mediation program, and the mediators’ responsibility as a matter of professional duty to
assure that the process is not misused.

THE MEDIATOR’S RESPONSIBILITIES

What should be clear is that the mediator is most important in maintaining the integrity
and allowing for the success of the mediation process. The mediator is responsible for
protecting the parties and assuring that their decisions are informed and well considered.
His or her skill, training and experience are major factors in the clients’ decision to work with a
mediator.

Most professional mediators have completed training programs to become mediators.
Just being a lawyer, mental health professional, clergy or accountant is not usually enough to
fully appreciate the role and responsibilities of being a mediator. While training alone is no
guarantee of competency, it at least demonstrates some commitment to being a good mediator.
As well, a good mediator is likely to be a member of some national, state or local professional
organization. There are two well-regarded national organizations: the Academy of Family
Mediators (located in Lexington, Mass., tel.: 800 292 4236), and the Society of Professionals in
Dispute Resolution (located in Washington, D.C., tel.: 202 833 2188). Both organizations have
set standards of practice for mediators and maintain professional practice review procedures.

Good mediators are not neutral. They do not simply hang back and remain “above the
fray” or disengaged. They are, rather, directly involved helping the parties to effectively
negotiate. Mediators have a professional duty to be balanced between the parties, assuring each
party has sufficient information to make informed decisions, understands all of the issues that
must be addressed, knows the options that are available, and have thoroughly considered the
risks and advantages of each option. The mediator asks the parties hard questions and probes and
checks their understanding in pursuit of a resilient, durable agreement. Thus, the mediator
should be responsive to any question a party may ask about the mediators’ skill level and
experience. If the mediator is to be effective, each party should feel personally comfortable with
the mediator. After all, the mediator will be privy to the most intimate details of the parties’
lives.

As well, the mediator should be able to explain the mediation process clearly,
including his or her style or approach, the rules, the structure, and an estimate of time and
cost. Fees should be straightforwardly discussed. Most good mediators have written mediation
agreements that spell out the responsibilities of the mediator and the parties. Prospective parties
considering mediation may want to interview more than one mediator before making a decision
about whether or not mediation makes sense for them and about the particular mediator.

Managing conflict is not easy; resources (time, money, property) are typically scarce and
it is seldom that all parties are satisfied. Be wary of a mediator that overstates the advantages of
mediation. Often, the best outcomes are those where no party feels that advantage-of and move
ahead with their lives. Most issues can be mediated, not just parenting responsibilities (time
arrangements and decisions), but as well, financial responsibilities (child support, maintenance,
school and health expenses, insurance), and property division as well. In fact, mediation is now
commonly used to manage business, workplace and many other kinds of disputes. It is an
efficient and effective way to manage many , if not most, disputes.

In family and divorce conflicts, mediation allows people to have the opportunity to
get divorced differently than they were married. That is to say, that people can learn to
negotiate issues with each other even when they may have been unable to do so in the course of
their marriage. At the same time, mediation is not counseling and the mediator should generally
be clear about the distinction. Some parties find the mediation process to be a “healing”
experience; others find the process to be merely a means of surviving a stressful and difficult life
circumstance. However they experience the process is in the final analysis for the parties to
decide and not the role of the mediator to style.