Comments: Voluntary Mediation? Apparently, the False Prince Charming

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Giulio Zanolla, Brooklyn NY     03/21/14
Are we focusing on the interests or positions?
Thank you Giuseppe. As you know, I share your perspective on almost everything you expressed in your response article. I definitely agree with you regarding the importance of focusing on possible practical solutions rather than on theoretical or philosophical debate. I believe that one of the obstacles to a faster and wider development of mediation is the lack of cultural understanding of mediation in society. It seems, then, that the attention should be focusing on increasing the level of understanding of mediation among users; and policies that promote such development could represent a prompt response to a perceived need for imminent change. Whether a mandatory mediation policy is desirable may depend on many factors, including the local/regional/national reality in which it would be implemented. And whether it would have a positive cultural impact in terms of understanding and acceptance of mediation among users, can be debated. The perspective of the users appears the most valuable component of the question. I believe that most, if not every, mediator who after a formal training had gained a certain practical experience in the field, could confirm that only such practice enable them to thoroughly appreciate the value of the concepts studied in training and how to effectively apply them in mediation. So, if even trained mediators need practice to digest and effectively apply the principles of mediation to real and sometimes complex disputes, to expect that most people who are not personally interested in the subject could understand the breadth and value of mediation without the direct experience seems quite unrealistic. This assumption seems to be confirmed by the fact that the use of mediation –and the culture of mediation- have not developed as expected in many countries, despite substantial efforts put in awareness-raising, information and education activities made to convince disputants to try it. Even if the notion of mediation may effectively reach the audience, since it has no immediate practical relevance for most listeners, it seems not to become integrated in people’s own paradigm of convictions, on which they rely to make their decisions. Furthermore, neuroscience tells us that when people experience conflict, their decisions are strongly affected by instinctual behaviors governed by the reptilian and limbic portions of the brain, frustrating even further the possibility for disputants to trust a process with which they have no direct familiarity. The example of Italy may signal that a mandatory model, in that system, could reveal effective to promote the development of mediation culture among users. As showed in the Rebooting the EU Directive Study, when the first mandatory mediation law entered into effect in Italy, beside the obvious spike in numbers of mandated mediations, there were a substantial number of new, voluntary mediations, which accounted for roughly 20% of all cases. Interestingly, before the law was enacted the number of mediations was very low, not comparable to the number of voluntary mediations post law-enactment, while after the mandatory provision became inapplicable, all mediations including the voluntary ones stopped abruptly. That 20% of voluntary mediations could represent a positive tangible effect of initial cultural change. It could represent, for example, those layers who became (through experience) increasingly more familiar with mediation and started recommending it to their clients also in cases in which it was not mandatory. As well, it could include the effect of those clients who used mediation and shared the experience in their networks making mediation more familiar within their respective personal and professional circles. Undoubtedly, change at a cultural level does not happen quickly, and the fact that such change hasn’t completely happened in the short time while the first mandatory mediation law in Italy was into effect shouldn’t be surprising. Today, a new mediation law is in effect in Italy, which includes a mandatory requirement to attend a preliminary meeting with the mediator and the possibility for each party to opt-out then, without participating in the mediation process. The debate regarding the value and validity of mandatory mediation certainly hasn’t stopped. It is probably too early to have significant data, but I agree with Giuseppe that a cost-benefit analysis is critical to evaluate the opportunity and appropriateness of a proposed policy. There seem to be good arguments to support that by implementing a stronger policy as mandatory mediation for a limited period of time, even if unsuccessfully, the cost for society would be lower than allowing the status quo to persist and deteriorate further. While, if the attempt would turn out to be successful, there is a chance of contributing significantly to the development of the culture of mediation in society, which could constitute a fertile ground, much needed to the seed of ADR. Also, similar principles have been applied in other areas, with results –and rationales- that is difficult to think in hindsight that they should have been radically opposed. The case of alphabetization comes to mind. Who wonders whether it would have been better, for example in Italy at the end of nineteenth century, to leave to the own will and means of individuals to decide if learning to read and write was desirable for them and society? Instead, political choices were made to change the law and increase the mandatory education requirements for everybody in the nation. Even if probably not to the extent hoped for, such policy produced tangible results which today –I believe- are commonly considered an essential action that was undertaken to help the country develop its culture and society. I believe that mediation should always be voluntary. I also think that a model like the one adopted in the most recent Italian mediation law, in which the mandatory provision is limited to the introduction to the process, may serve an important practical purpose and still preserve the essence of voluntary process of mediation. In such system, only the users who want to proceed, after hearing from the mediator about the process, will sit at the mediation table. No one else is forced. There are so many extremely valid arguments, involving the theory of mediation, to firmly oppose any form of coercion to participate in a mediation process. I understood the ones I’ve heard and recognized the value of those arguments. However, many mediators in different parts of the world seem to agree that the field has not being developing as expected. We, mediators, are in a privileged position to see that compromise could mean opportunity, that to try and change our own perspective on our trade could be a constructive exercise. If we are interested in changing the landscape, it is time to focus on the interests, rather than positions, and be strategic about what risks we want to avoid and what compromise may be acceptable to us, in order to retain ownership of the outcome. It seems that trying to protect mediation from 'evil' contaminations allegedly compromising the purity of the concept is not serving the interests of many mediators, nor of the parties, who we claim we can help by providing a valuable alternative for resolving their disputes. Do we want to think about who did what to whom and who is the white knight protecting the pure principles of mediation, though accepting an undesirable condition, or do we want to find a sensible solution to address the present issue and try to take action to shape the future outcome to realize the common interests?

Louise  Lerche-Gredal, Copenhagen     03/21/14
Vedr. Result ADR
In my opinion we should re-conceptualize the meaning of “voluntary”. Voluntary in the context of mediation is twofold. It is both related to voluntarily accepting to initiate a mediation process and to the parties voluntarily deciding the outcome of the process. In the mediation process it is certainly vital that the parties decide the outcome on a voluntary basis. The outcome may not be affected by the mediator’s personal wish to settle. Moreover the “success” of the mediation shall not be linked to an expected settlement rate, but to the quality of the process. For this reason I find it less and less problematic if the initiation of the mediation are not entirely voluntary, as long as the parties are free to decide the outcome.

MARCELO CORREA, Brasília DF   03/20/14
Great contribution for the debate. The growing of mediation, in my opinion, is related to our maturity level to deal with the major challenges in this area. One of them is to think about the taboo mediators created around themselves. In my experience we, mediators, are the ones who builds walls between the present and the future. Mr. De Palo goes right to the point. I know very few people that felt mediation inadequate to their dispute. Otherwise I know countless ones that regret to use the court system to try to solve a conflict. We really need a World Pound Conference to talk about it with no myths and fairy tales.