I no longer believe that mandatory mediation isn’t really mediation and I’ve shifted from believing that entry into mediation must be voluntary in order for it to work well. In fact, although mediation has grown significantly across the span of three decades, still many attorneys have little knowledge about how it works, and many misperceptions about what transpires during mediation. Many who could be end users of mediation likewise have heard about it, but lack fundamental knowledge. Those gaps often result in people not choosing mediation as an option as they don’t have real information that creates an actual choice.
So, when courts order mediation or develop programs that compel people to attend mediation, many enter the process for the first time knowing little. Once in the process, while attendance and participation may have been mandatory, process interactions and certainly process outcomes are totally voluntary. No one in mediation is compelled to do anything and that is the real hallmark of mediation principles. The fact that people were compelled to attend loses considerable significance.
I’ve seen my thinking shift, as well, around the issue of lawyer attendance at pre-litigation mediation processes. While there are instances when it is helpful for the lawyers to remain in a role of being an outside advocate, I’ve also experienced ways in which the presence of counsel contributes significantly to people considering and ultimately reaching a mutually significant outcome. Too often people in conflict rely on things they’ve read about similar conflicts, and they trust their neighbor’s version of a benchmark of what’s right and what’s fair. Given how easy it is for two people to hear the same words yet experience the conversation differently raises the issue of whether each counsel outside the process has actually been given identical information, or whether both or all mediation participants have fully understood what counsel has advised. In many instances when counsel is in attendance at mediation, the mediator helps counsel join in certain ways that mitigates the types of differences that otherwise arise. While mediators frequently try to help participants to be cognizant of all possible outcomes, when counsel is present counsel often brings a base of critical reality to the process. I’ve seen many occasions when counsel for the parties has assisted clients in tempering the types of unruly emotion that can make reaching a mutual resolution difficult.
The shifts I’ve seen take place in my thinking about mediation is a good reminder that beliefs and principles are helpful and at the same time it's important not to be fixed on them in a way that allows them to be the sole and primary drivers. I don’t suggest, at all, that the age-old notions about mediation be ignored. In fact, they continue to be highly instructive and are critical to take into account. In addition, though, no one should ignore the real experience one has or the importance of bringing practical experience to the process. In the same way that people can experience conflict differently, there is no set rule for what works and what doesn’t. Mediation will always need core guidelines. Mediation, though, is also well-served by common sense and by designs that account for the actual conflict people are trying to resolve and the participants, themselves.
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