I recently wrote an essay claiming “Mediation isn’t only dead, it’s fucked.”
Why did I say that? I’m a conflict resolution profesisonal, right? Isn’t the Alternative Dispute Resolution Process that to which I should commit my life?
I do, and I have continued to live my life by that professional idea: “Choose peace.”
Only recently have I learned that conflict is unavoidable, and that mediation as a whole is not the tool that remains the be all, end all to conflict. Sometimes, you have to fight for that which you believe in.
We killed mediation when we started with unrealistic expectations. The beginning of the indoctrination into the world of “Alternative Dispute Resolution” means that you understand one basic fact: judges don’t want to try cases. The judiciary wants to make sure they get home in time for dinner, and that lunch is a thing that will happen around noon any given time.
That’s why mediation looks so viable as a business model to so many. You get the con from a well meaning person who tells you that there’s a better way to handle disputes than litigation. You get to know that you’re not a “warrior,” that you’re a “peace provoker.” You’re told that if you follow this method, that if you do things in this fashion, then you will be a healer, a person who mends fences, and makes the world full of shiny happy unicorns and rainbows.
We’re even told that there’s a thing called the “vanishing trial,” and that people who normally litigate are railing against the “vanishing trial” because it banishes the old trial hounds to obscurity.
None of this is true, at least under the current model of mediation. It’s not even true under future models of mediation. The future of “alternative dispute resolution” is the same as it always has been. It’s one full of snake oil salespeople and those who will continue to market their personal brand of “training” as one that will lead to thousands of dollars in the pockets of those who “train” and no business for the people who actually take the training.
Mediation is so appealing to so many people because those from all walks of life have the ability to take a mediation course and become a mediator. In my home state, if you have “job experience” and the ability to shell out a few thousand dollars a year (in both certification fees and mediation CMEs) then you’re allowed to hold yourself out as a “Listed Rule 31 Mediator.”
What does that mean? You’re allowed to conduct “court-ordered” mediations. You don’t get a guarantee on business. You don’t get a guarantee on that which is “court-ordered.” You just get the ability to do business if a judge realizes you’re on his or her “list” and decides to appoint you. This is why people are able to charge thousands more for “family” listings in Tennessee than the “Civil” listings. It means that when you have a divorce with kids, the Volunteer state will require you to go to mediation and work through a parenting plan, spousal support, child support, and any other avenue in a power session where you may not feel comfortable with the agreement but will take it anyway because you want the entire session to be over after the fourth hour.
I suspect this series of essays will piss many people off, from judges to attorneys to those who consider themselves “peace provokers.” That’s fine by me. It’s long time the public and the professional sphere learned the world that is “alternative dispute resolution” is one that was poisoned and killed by their actions long before they brought mediation to the forefront of peoples’ lives.
Some times, you have to break a few eggs to make an omelette. When you’re making multiple omelettes, you have to break a lot of eggs. With “Mediation Is Dead,” I plan to break every single egg in the grocery store in a three step method.
The first step is to show you how mediation became a hot button topic in the legal world. I will discuss how mediation became a viable business model for some and not for others, how “training” in this method gave some fat bank accounts and others empty promises, and how the business of mediation continues to evolve in various forms, whether through strong-arm tactics and shuttle diplomacy or through “tech” companies that want to leverage their “disruption” into a pyramid scheme to give you false expectations in the hopes you’ll make more money through nebulous terms.
The second is to bring the reality to the table. I will show you concepts like “expectation management,” talk about conditions concerning the human condition, and discuss raw emotions that are present when a mediation takes place. I will also discuss the presence of attorneys and “support persons” in a mediation, how novice “peace provokers” can allow these toxic influences in their respective lives, and how these influences plus “power sessions” can destroy an agreement in the long run and achieve “buyer’s remorse” in an argument.
The final step is the one I hope the most people take advantage of. If you will listen, and read, I’m going to teach you specific communication skills that will help you avoid the mediation table. I will teach you body language, microexpressions, learning about “emotional autism,” and how you can get out of a digital world, stop neglecting those whom you love, and face a new life.
Follow those steps and we can make sure the nails lie in the coffin of the phantasm that is “mediation,” “arbitration,” or “alternative dispute resolution.”