Mediation as a Subversive Activity

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Republished with permission from “THE BRIEF”, DuPage Co. (Illinois)
Bar Journal.

Remembrances of Times Past–
A Brief History and The Origins of Mediation.

“Be careful of what you wish for…you may get it,” is the old adage that is nowhere more
relevant than to the advent of mediation into our cultural-legal landscape. Those around long
enough to remember the beginnings, the mid to late 1970’s, sometimes wondered if mediation
would ever be viewed by the traditional legal order of judges and attorneys as anything other
than a new age fad. Now courts and legislatures throughout the country are developing
mediation programs; you know mediation has arrived because even though the formal use of the
process began in California, the remote interior region of the Country –Illinois, Missouri,
Indiana, Kansas, Iowa, and Tennessee among others–have begun programs, despite its’
origination on the coast.

Mediation, as a generic process–a third party facilitating the
management of a dispute between others–has of course been around since the beginning of time;
mediation as a formally institutionalized process, however, legitimated, accepted and adopted as
part of the traditional legal system, is a recent and significant phenomenon. One would be hard
pressed to find another time in recorded history when people in conflict have been actively
encouraged to consider the notion that they are better suited to settle their dispute than are
courts. Abraham Lincoln clearly enjoined disputants to negotiate their differences, but did not
venture much beyond that good advice to suggest an effective place or means to do so.

So now
we have legislation and court rules providing for mediation, programs to provide services, and,
of course, rules and regulations to monitor those services. We’ve got mediation galore; between
the public programs and an ever increasing number of private mediators seeking to ply their
trade, one could be led to believe business is booming and that we have gotten what we wished
for. Maybe, maybe not.

There now looms over us and among us serious question as to what mediation is, who
owns, rules and regulates the practice and how it is done. The question is important, not just for
those familiar with mediation practice, but for clients considering mediation, other
professionals (lawyers, mental health and business) who work with mediators, and perhaps
especially for judges or other policy-makers who may be planning mediation services or
programming. The issue goes to the heart of the nature, quality and efficacy of mediation
practice in the coming years.

Judges, court personnel and legislators, who have in the past been slow to accept or
understand mediation, are presently not at all hesitant to set standards for mediation programs.
Some lawyers and legal theorists are suggesting that mediation is essentially the practice of law,
or at the very least requires the knowledge and skill which is solely the province of attorneys. (C.
Menkel-Meadow, NIDR News, Vol. III, No. 2,March/April 1996). In Indiana, for example, non-lawyers are not allowed to serve as court registered mediators in civil and commercial disputes,
and in many states, court certified mediators are only allowed to manage “custody” (sic
parenting responsibility) disputes.

Before we blame those outside the field for trying to “take over” mediation, however,
there are not a few mediators in the field who seek licensure of practice based in the belief that
the public needs to be protected from unscrupulous or incompetent practitioners. In 1997, the
first such legislation was introduced in California, without success, but stay tuned. One is left to
wonder who is being protected from whom and from what? Is the public the object of our
concern, or are we seeking to bolster our prestige as a real profession?

Further, within the field, debate continues between those who are self described
“evaluative” (the mediator gives advice and recommendation to the parties) and those who are
“facilitative” (the mediator is strictly limited to managing the process). This discussion is
essentially the same but takes on varying forms as “transformative” mediators seek to
distinguish their approach from “regular” mediation, or those who encourage a “med-arb” model
or “caucus style” mediation pursue their style preferences. (R. Benjamin, Academy of Family
Mediators, Mediation News, Winter 1994, and Winter 1998) The core of all of these discussions
is of course the role of the mediator and the extent of his or her involvement in the issue/dispute
outcome.

Sometimes these discussions turn nasty and variations in mediation style are presented
as ethical issues: one practitioner’s ethical breach may be another’s style. Our dislike and
sometimes expressed disrespect for alternative styles of practice, follows true to form how we
humans handle conflict, notwithstanding the fact that those involved are themselves professional
mediators. Specifically, we save our strongest animosity for those closest who appear to betray
us–they are our “intimate enemies.” (E. Pagels, THE ORIGINS OF SATAN, 1995) Those who
may not understand mediation can be excused their misunderstanding, those who should know
better are at the very least undermining the integrity of the field, and may even be traitors.

In any
event, while such discussions are difficult, they are valid, necessary and healthy for the field to
progress. They are, without doubt, the byproduct of the acceptance of mediation as a mode of
conflict management. Such discussions about the nature of mediation are especially critical as
courts and other public authorities encourage and sometimes require conflicting parties to
attempt mediation prior to access to court. The pressures of the marketplace also force
consideration of mediation style.

In this context, then, recalling some of the original thinking about the purposes and
design of mediation is useful, if for no other reason than to note how some of those notions have
shifted, been modified, or been diluted and misdirected. To be sure, no one possesses a
trademark on mediation, and there never was an original constitution of practice to which one
was obligated to be faithful.

In the mid 1970’s, when divorce and family mediation, and some
civil and commercial mediation was beginning to be regularly practiced at varying places around
the country, the focus was simply allowing disputing parties to have greater involvement and
control over their own decisions, so as not to be quite so hemmed in by the requirements of the
traditional legal system. There was a basic belief that parties, if given sufficient information and
direction, could make better decisions for themselves than lawyers or a judge could make for
them. While there is no doubt that there was some measure of anti-lawyer sentiment, (O.J.
Coogler, STRUCTURED MEDIATION IN DIVORCE SETTLEMENT, 1978), the primary
purpose was client self-determination, albeit “in the shadow of the law”, (R. Mnookin, and
L.Kornhauser, “Baragaining in the Shadow: The Case of Divorce”, 88 Yale L.J. 950, 1979).

In
any event, in those early days, with the exception of California and one or two other states,
almost all mediation was done outside of the court system. The notion of mediation was
relatively simple and straightforward: the mediator was to work with the parties to help them
fashion an agreement they could live with regarding parenting responsibilities, property division
and financial responsibilities. No bells and whistles; the mediator was either helpful or not and
the parties either came to agreement–or not. The attraction for practitioners was a direct,
common sensical, and constructive method to aid parties in conflict unhampered by traditional
role definitions.

A Good Idea Spoiled?

What is apparent since the rapid advent of courts, agencies and legislatures into
mediation since the early 1990’s, is the persistent effort to set standards and regulations for
mediators. Not surprisingly for the human species, especially in our techno-rational culture,
there appears to be an inbred need to set rules. Any time two people get together to organize an
activity, the first thing they want to do is set rules for the third person or other un-named people.
The practice of mediation has been no exception.

The difficulty in all of this rule setting and mediation programming is that mediation is a
subtle and perhaps even fragile process that may be disrupted and even undermined by the good
intentions to manage it. This is especially so when the management authority is the State, no
matter how well intended the purpose. If the core of mediation is to allow for parties to self-determine the management of their dispute, then a court connected (works for the Court) or
court related (referred cases by the court) mediator may be serving the purposes of the court, not
the parties. Courts are in the business of moving cases, that purpose may overlap those of
mediation, but sometimes may be in conflict.

Mediation must, by definition, be voluntary. If the
court mediator is wittingly or unwittingly doing the bidding of the court, that voluntariness may
be easily compromised. The question becomes “Who is the mediator’s client–the court or the
parties?” In theory and in practice, the mediator’s duty is to the parties and should not be
confused with the court’s desire to settle cases and get them off the docket. If that happens, well
and good, but that is not the sole purpose of mediation. Mediation should provide the
opportunity for parties to come to agreement, not the obligation. Notwithstanding stated
intentions to the contrary, there may be an implicit expectation that they will settle which may
be as strong as any expressed pressure to settle.

There are a number of ways the court’s pressure to settle or otherwise direct the outcome
of a matter can play upon both the parties and the mediator which can dilute or corrupt the core
purposes of the mediation process.

First, not often, but sometimes, the court (judges, mediators
or others) breach their own protocols of confidentiality in mediation and inquire of the mediator
or others connected with the case as to which of the parties was most resistant to settlement. In
Florida, for example, some mediators, lawyers and parties have reported that their reluctance to
settle was considered in the ultimate court determination of the dispute

Second, mediators in court referred matters are sometimes instructed what the law or
policy of the court is understood to be in certain kinds of cases or issues such as in “custody”,
child support, or the division of property. While the law is an important consideration, it should
not be determinative in the mediation process if the parties are to come to their own agreement.
Sometimes mediators and even lawyers and judges confuse not following the law with doing
something illegal. Many states, (Indiana, Tennessee, Missouri) are now requiring that the law be
included in mediation training programs. If that were being done merely to help the mediator-to-be to appreciate the legal ramifications of the decisions the parties might consider, there would
be no concern; too often, the intention is to direct the mediator. As well, regardless of intention,
many mediators draw the inference from the training that they are expected to follow the law as
instructed.

Third, sometimes the design and intention of the mediation program explicitly or
implicitly obligates a bias for the mediator to adopt. In “custody” mediation program, the
purpose is to protect the “best interests of the child.” In Americans with Disabilities (ADA)
matters, the purposes of mediation are to enforce the law, and likewise in the mediation of
Federal,” 4D”, child support enforcement issues. While each of those programs have noble
purposes, their ends may be at odds with the core principles of mediation.

Fourth, sometimes mediation programs seek to direct the style and approach of mediation
practice.. In Marion County (Indianapolis), court mediators are not allowed to meet separately
with the parties. In other programs, mediators are expected to be “collaborative”,
“transformative”, or evaluative in orientation. Those directives are akin to telling a lawyer how
to practice law or the approach to counseling a therapist should have.

Fifth, sometimes political forces are at work to shape and direct the mediation process. In
some programs, the mediator is precluded from addressing certain issues, for example, a
mediator addressing parenting responsibility issues is disallowed from considering financial
responsibility or property division issues for fear of offending lawyers who might view
mediation as a threat to their business. Experienced practitioners, whether mediators or not,
recognize that many parenting disputes are financial disputes in disguise and the separation of
the issues is artificial and impractical at best. The message to the parties may be in effect, we
will let you make decisions about some issues but not others. In any event, the core principles of
mediation are compromised.

Sixth, some mediation programs confuse the role of the mediator with that of an
evaluator or state investigator from the outset. The obligation of a mediator to report child or
spouse abuse, or in the case of a state bar association’s lawyer grievance mediation program, to
report any other discovered violations, contradicts principles of mediation. Again, such
requirements might be noble and perhaps even otherwise legally obligated, but they are at odds
with the purpose of mediation.

The argument and justification for most of these noted compromises, and others, are
political necessity and legal requirements if the mediation program is to be conducted under the
auspices of the state. Every mediation program administrator will note that while these risks are
present, on the whole the benefits of government sponsored mediation services outweigh them
or they are negligible in practice. They may be right and the advantages of providing mediation
have been considerable, not the least or which is the legitimacy and validation given to
mediation as a viable mode of conflict management. But the pragmatics beg the question; in the
long run, will mediation be seriously compromised or even fatally injured?

If mediation, as it is
programmed into the legal structure becomes just another cog in the system to move cases or
enforce preset notions of the correct result, will people begin to reject the process? In short,
mediation may become merely a means to coerce social harmony and order. (L. Nader, “When is
Popular Justice Popular?” in THE POSSIBILITY OF POPULAR JUSTICE: A CASE STUDY
OF AMERICAN COMMUNITY JUSTICE, E. Merry and N. Milner, eds., 1993). We may in
effect be saying to people, you can decide whatever you want as long as we agree with your
decisions.

The Limits of Rationality—Mediation as a Subversive Activity.

It may well be that if mediation is to survive and continue to become an appropriate
alternative and adjunct to the established legal system, it must be and remain a subversive
activity. That is to say remain outside government control, regulation and protection, for better
or for worse. This is admittedly a pretentious notion, and perhaps unrealistic to boot, but
nonetheless necessary to consider. At the very least, the unrestricted and heretofore unexamined
adoption of mediation–a process that is intended to allow people to step aside or outside the
strictures of the law–by the same public agencies and authorities who enforce the law is dubious
and questionable at best.

Those who have actively sought to bring mediation into the institutional structure as an
effective mean of settling conflict have a belief system that incorporates two fundamental
premises: one, that the mediation of disputes is a more highly evolved method of resolving
conflict and is the manifestation of a more sophisticated political order; and, two, that
government and public authorities can and should rightly include that process in the established
legal order to encourage the settlement of disputes. They believe in the idea of progress and that
government can deliver and provide for that progress. Said more facetiously, some people have
never met a law or regulation they did not like, and that if mediation is a good idea, then it
should be incorporated into the schema of the legal system; if we have good laws, then people
will be better citizens as a result. We have become, in a very real sense, prisoners of good
government; the belief that if everything is done openly, above board and rationally, then
government and society will function in a more orderly fashion.

As a society, we are preoccupied with law, rules and regulations. Congress and state
legislatures pass laws by the ton, business organizations have employee handbooks that grow
thicker by the day, and people, including mediators, desire set, precise standards of practice. The
thinking is that if behavior is controlled by written codes, there will be more order, less chaos
and, accordingly, less conflict. Everyone will know what to do and when and how to do it.

This is essentially the “myth of rationality” (R. Benjamin, “The Physics of Mediation:
Reflections of Scientific Theory in Professional Mediation Practice” 8 Mediation Quarterly 91,
Winter 1990) While some rules are necessary, too many of them give the illusion of some
proverbial cookbook or formula for the resolution of every issue or infraction of rights they
might address.

There are unintended consequences as a result of too much law or too much reliance on
rules. (E.Tenner, WHY THINGS BITE BACK: TECHNOLOGY AND THE REVENGE OF
UNINTENDED CONSEQUENCES, 1996) First, if people overly rely on set rules to direct their
behavior, they will tend to abdicate the use of their own discretion and common sense; second,
the very rules they rely upon, because they are so numerous, may be contradictory and confusing.
(P.K. Howard, THE DEATH OF COMMON SENSE: HOW LAW IS SUFFOCATING
AMERICA, 1994) Too much law may yield uniformity of result, but not necessarily the justice
we desire. For example, child support guidelines treat everyone the same, but there can be no
pretense that the same rules applied to parties in Chicago are fair to people in Peoria, or vice
versa. There are, in short, limits to rationality; the expectation that all issues and problems have
a clear, rational answer is not rational. (J. Elster, SOLOMONIC JUDGEMENTS: STUDIES IN
THE LIMITS OF RATIONALITY, 1989)

What mediation is intended to provide is a means for parties to re-assert the exercise of
their own discretion and to take back a sense of control over their lives that rules and laws may
have undercut. Mediation, then, is inherently at odds with the established order. In a very real
way, the mediator forms a conspiracy with the parties in conflict and says, in effect, here is what
the law may be, what do you people want to do? By contrast, if mediation is institutionalized in
the traditional structure, the mediator may be relegated to being an agent for the traditional
system, or worse, an apologist for the established order, fair or not. Mediation was originally
conceived and borne out of the circumstantial necessity to give disputing parties a way around
being intruded upon by courts, lawyers or other professionals who otherwise presumed to know
better for them and their children what they should do.

The profession of mediation is young and its’ future is as yet unclear. It may become the
manifestation of a more highly evolved means of managing conflict, but if so, only because it
seeks to preserve in an ever increasingly regulated society, a means and a place of refuge for
people in conflict to retain control over their own lives. Ironically, the chances of mediations’
survival as a viable mode of conflict management may be better if it is allowed to remain a
subversive activity. If mediation continues to be co-opted and assimilated into the traditional
legal system, and forced on people, whether intended or not, for the right reasons or not, then the essential purposes and usefulness of the process may be lost.