Having shoveled out the fact that mediation (no longer traditional) is now
controlled by experts bringing their own progressive interpretation to mediation, we dig the second shovel. Although the ground is wet and muddy we need to remember the fact of traditional mediation and self determination is important. My shovel is getting heavy with mud. COVID-19 weighs heavy and the advent of ZOOM just makes my shovel heavier. Is it worth it? Of course it is. The opportunity to speak for oneself should never be lost. Out in the world, dialogue is getting more difficult. But in mediation, dialogue can be preserved with the help of mediators that will not relent in believing in traditional mediation.
Zoom makes it easier to leave traditional mediation buried. With the flick of a switch the parties are in separate rooms and the mediation moves forward. Confidentiality, and known people in attendance, all gone. Those writing about confidentiality will address the future problems as they see them. But we should remember that in traditional mediation the parties come first and in this process confidentiality is sacred and manageable.
What also weighs heavy on my shovel and makes reviving traditional mediation difficult is the process and terminology being used. The experts in the process have “clients” instead of “parties.” For our legal experts everybody is a client and that is sad because a person in mediation being called, by the mediator, a client means that person is expecting help from the mediator. Hence, evaluation, solution suggestions, and lawyers making opening statements for their “clients.” All of it crushing traditional mediation. Let’s remember that a party is a party plain and simple. Thinking otherwise gives the parties an expectation of everything will be done for them. Self-determination has to remain the priority, rightly glorifying the party and letting them determine what they need to do with ending the conflict. Using proper terminology, referring to the person in conflict in mediation as the party, helps keep traditional mediation on the second shovel.
Not many mediators do more than read each attorneys summary of their client’s position. A mediator is at a big loss here because any reference to the real hangup by the party isn’t written down. It’s much more effective for the mediator to be aggressive by phoning and asking questions that pertain to the conflict. On the other hand there are mediators that ask for all the paperwork available so they know the pertinent facts. Really, not necessary. And why not? Think evaluation and solution to the conflict. Before the mediation a list of pertinent questions by the mediator is asked of each lawyer enlightening the mediator of the existing conflict.
Mediators need to do pre-mediation with the lawyers. Analyzing each party during mediation doesn’t do it. Knowing who’s who before mediation gives the mediator a perspective of the parties and their concerns about the conflict. And many times the reason the conflict hasn’t been settled.
The mediator’s role in traditional mediation is to move the conversation along. Having a perspective will help move the mediation positively in the direction of self determination and support the “parties” speaking up for themselves. It’s why they are there to end the conflict and do it themselves.
Traditional mediation is about needs and the process that meets those needs- dialogue and self-determination.
There may be a need for me to dig faster to keep up with all the incoming distractions, but this also means that more mediators have to stand for traditional mediation.
Gini Nelson is the founder and author of the Engaging Conflicts Blog. Gini received her law degree from George Washington University Law School in 1983 after teaching Social Problems at the...By Victoria Pynchon
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