Comments: Let’s Be Clear, Mediation Is NOT Arbitration

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Jeffrey Shelton, Norfolk VA     10/14/09
mediation vs. arbitration
This distinction is presented in new mediator training as basic to an understanding of mediation and its distinctiveness in the pantheon of ADR approaches, yet I think that there are significant similarities which receive short shrift in the literature. Both are concerned with social influence processes, arbitration more overtly. That is, the structure of each is fostered by a neutral who is trained to promote an environment in which parties will likely come to terms on settlement of their issues. In family mediation, at least in Virginia, the mediator is supposed to be knowledgeable (read expert) on child and family development in part to safeguard the interests of the child who ususually does not participate directly. This mediator characteristic in practice tends to emulate the subject matter expert role in arbitration. More importantly, the presence of a trained professional tends to alter the negotiating behavior of the parties, whether mediators wish to acknowledge this or not. They may turn to the mediator either actively or passively during the session to ask questions, garner an opinion or validation or simply listen to an outider's view. This is a social influence process which can and does, thankfully, extend to outside encounters the parties have when the mediator is not present. It is time for mediators to stop pretending that theirs is a "value neutral" pursuit. Empowerment of parties will be more likely to occur if he or she recognizes to self and parties that a spad is a spad. Family mediators would do well to study the literature of family therapy process where influence is recognized and honored.