In a world where we look to change, improve, eviscerate, or satisfy the client/party. In making changes we are coming close to changing the process of mediation to one of accommodation. No longer does the mediator run the process in the way intended. Mediation now accommodates the parties in conflict and includes their lawyers. We use the excuse “mediator style.” We should be talking about only one style, facilitation in joint session. Now, the process has everybody at the table engaging in one big conversation. The mediator accommodates any and all ideas aimed at resolution. This is a serious drift from the intention of mediation. More like patting the party on the head and saying, “that’s okay we don’t want you to feel bad about doing this mediation.”
THE STAGE PLAY
If mediation were a stage play, the parties would be the main actors. The mediator would be the stage manager, and the lawyers would be the supporting actors. But now the supporting actors play a bigger role in this stage play. Or a main actor(party) declares “I don’t want to be in front of …..I’ll be in my dressing room, stage manager, come see me.” In the dressing room the actor(party) says, “Here’s what I want. Go on stage and deal with that thing out there.” Now the stage manager has the role of star actor and has to deliver the lines on stage (to the other party.) But of course there are mediators that love the role change to star actor. But making sure to be neutral and unbiased. Seems easy since original lines(ideas) will not come from the mediator. It’s the parties words and ideas that are delivered by the mediator.
Not long ago, I suggested that lawyers do not speak in joint session unless to ask for a caucus with their client, with or without the mediator. The client would then bring the idea to the table for discussion with the other party. I received comments that I was insulting lawyers by suggesting that they not talk during joint session mediation. Again, joint session is not a round table discussion group fest. So we have accommodation of the lawyers to also be direct contributors to the discussion. It’s insulting to the mediator. Prevented from performing as trained. But needing to accommodate. Why? You think it over. The mediator is the ultimate definer of the mediation process, not because I say so (as some have commented). But because mediation allows parties to dialogue together and come to a resolution. Dialoguing is a key to mediation. Parties together with the mediator are important and include self-determination. If we are not being faithful to the intention of mediation, we are becoming accommodators.
Self-determination comes into existence when the mediation process begins and not before. The process is not a conflict for the party to self-determine. The process gives the parties an opportunity to self-determine. Instead we are accommodating parties to choose type of session. The process begins with the mediator’s opening comment and explanation detailing self-determination.(Incidentally, often the opening mediator remarks are eliminated and lawyers make their opening statements on behalf of their client.)
Mediation is of the party, by the party, and for the party and will not perish from the mediation process. Holding the joint session process near and dear is supportive of the parties. Or will mediators become accommodators to all concerned?
This video is a simulation submitted to the ABA DR contest. It shows a dispute between two brothers that is resolved through mediation.
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