“….and one reason that mediation is so effective is that it is a voluntary
process.” How often have you heard or read this, and even said it yourself, in
describing mediation? But, do you have a pat statement about how effective
mediation can be when it is not voluntary, as is the case when parties have
been referred to mediation by a court?
There are often special challenges in “mandated” cases in addition to the
“usual” ones. At least one of the parties has decided to pursue the case in
court, through the adversarial process of litigation, thinking that “the law” will
be just, fair, and on their side. At the very least, this party has decided to let
someone else – a judge – decide the issues of the case. Considering this
choice, including the possible outlay of many dollars for the services of an
attorney, why should these folks suddenly feel happy about being sent
elsewhere, to people and a process that are strange and not of their choosing
and which will involve more time and possibly more money? Isn’t it a free
With that kind of a mindset, the litigants aren’t going to be exactly enthusiastic
about and eager to embrace the mediation process. In fact, at best their
attitudes may be “show me!” or at worst, “now that I’ve shown up, how fast can
I get out of here and back to court?” So, what can we do about this recalcitrant
attitude? I try to connect with their frame of reference and get them involved in
understanding what mediation is all about and how it can benefit them.
Once everyone is sitting down – occasionally even that can be challenging – I
acknowledge that I am aware that the only reason they have come is because
the judge made them do it. I tell them that they are at liberty to participate in
the mediation or not to, and that in order for them to decide which they want to
do, I ask their permission to explain the process and how it works. So far, no
one has been unwilling to sit around for this part of the dialogue.
I say “dialogue” even though, as the mediator, I do most of the talking at this
stage. However, as I explain the process, I pause at times to ask whether they
have any questions or whether they agree with what I’ve said. If parties can
agree with us and with what we have to offer early on, there is a greater
possibility of their ultimately agreeing to participate in the mediation
As we talk, I try to learn what they hoped to gain from having the case
adjudicated. We talk about settlement, satisfaction and potential outcomes,
including their possible reactions if the court does not rule they way they hope,
and the alternatives that would then be open to them. Then I ask them, in view
of what we have discussed about mediation, if they would like to try it, as they
can participate in formulating an outcome that will be acceptable to all
concerned. The decision would not be left to “chance” or someone else’s
judgment. It would be directly in their hands.
These are three questions which I will pose to the parties, in both voluntary
and involuntary cases before actually starting the mediation process:
These questions and their responses set a tone of inclusivity, letting the
parties know that this is their agenda, in which they can expect something from
the process, the mediator and each other. In other words, they are given the
power to act and make decisions based on their expectations. As the
mediator, I expect their full participation on their own behalf.
What I’ve outlined is not a foolproof cure-all. However, taking steps similar to
these can change the tone of a mediation from a potentially adversarial one in
which parties absolutely refuse to cooperate and participate, to one of willing,
though sometimes grudging, participation.
Getting there just takes more time and effort.
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