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Did Traditional Mediation Die?

After writing the obituary, many comments came forward saying mediation was not dead. It was different.

It's joint session that died and I still receive comments that joint session is alive and well. Well, partially alive. Mostly it is now used for meet and greet before shuttling off to separate rooms.

There are exceptions like Community Mediation Centers. In general sessions court and juvenile court mediators practice joint session, and also in family mediations. They work with the parties who selected mediation. Here joint session works with an occasional "let's step out in the hall" caucus. Parties listening to each other makes for progress and potential solutions.

There are other believers and users of joint session. A mighty few. We received an e-mail from a retired mediator/ lawyer saying near the end of his career he used joint session and lamented that he hadn’t used it at the beginning of his career. A story that may be repeated thousands of times by other practitioners.

There are some saying I know more than they do. Not the case at all. Traditional mediation is traditional mediation. I am bringing it to the attention of all practitioners who have forgotten its importance. Epictetus, said “It is impossible for a person to begin to learn what he thinks he already knows.” The lawyer mentioned above might disagree with Epictetus. I will disagree, too. Traditional mediation can be relearned. We have to want to.

Today, we're faced with a more challenging new mediation process. We can now Zoom, Skype, MicroSoft Team, Google Meet, a mediation without the need for a joint session. There is, now training on how to use Zoom during a mediation. Including how to use the keys for separate conversations with the parties. Don't you think this set-up will invite more "party consent?" The mediator and the counsel suggesting the course to take to gain agreement.

These are some of my concerns that put the nails in the coffin of traditional mediation in the first place. In traditional mediation the mediator kept everyone calm and could use many of his mediator tools. A good one was the flip chart, that few used. A list of options generated by the parties and referred to in building an agreement. By the way, how is the mediator paid? “Check’s in the mail,” I guess?

The concept of mediation will continue. It will continue, but with the loss of many features that made it traditional mediation. What will we miss? What’s mediation about? Please, give yourself the answer, but you know it starts with party self-determination and a neutral mediator.

Also, lost will be the sense of understanding each other, both by the parties and the mediator. In joint session there is a feel, it's in the air, for each other which the mediator can sense. Call it trust or not. Can that feel exist on the computer screen? Probably not.

Now, they may see each other as TV personalities or equals ( not a bad thing). Laugh it's OK. The equals part will never happen, separate sessions sees to it. Mediation doesn't need performers. The screen may also make people feel more/less vulnerable so off to separate session (which we learned how to do in Zoom training). Here the mediator begins talking to the party about how to settle the conflict. It's almost always about a way to compromise. Using doubt about what a judge might say, too.

There will be other important facets lost. The sense of compassion, empathy, and the mediator use of “tools” to use to reduce fear in decision making. Relating to a screen and not a physical being will be difficult. Meeting a party's need is what is important. Will it happen? Time and usage may tell.

A mediator sensing feelings in the room and the need to hold the joint session together, lost. Any use of observing body language, lost. What’s also lost is party control. It’s all mediator control and that is not necessarily a good thing. Many argued for party determination of the process. Now they have their wish.

Many mediators don’t try very hard to stay in joint session, anyway. Remember the article written by the JAMS Director about joint session disappearing?

And what about the lawyers? What will work that will prevent them from getting into the picture? We'll have a soap opera instead of a face to face meeting at the table of joint session.

Could be that traditional mediation will not appear on the screen. It probably won’t rise up from the grave either…… screen mediation will continue because it’s convenient. Mediators working with a 13”, 15”, 24” screens, well you get idea, will not get the whole picture….


Paul Rajkowski

Paul Rajkowski was born and raised in the Chicago area. After serving in the USAF, he graduated from St. Mary’s University of MN in 1967. Paul went to work in the printing industry as a sales representative in the printing ink division of a national company, eventually earning a sales manager… MORE >

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