The Mediation Is Dead Mantra

Part of my skill set involves mediation training. I am a mediator and I mediate cases. Usually those cases involve families seeking a divorce. If I work in that area, why would I maintain a website called “Mediation is Dead?” It’s an evolving answer, and an evolving statement, but one worth a discussion, so I’ll begin by saying when I mediate a case I used “Mediation is Dead” as my mantra before walking into a negotiation room.

Thank the man below for this, as well as the subsequent explanation.

Daniel Madison is one of the world’s foremost sleight of hand experts.  He’s used the mantra “Magic is Dead” for a long time. I’m a huge fan of his work, and it’s often scary how his insights into life mirror mine at times. Watch the embedded video above and substitute the word “mediation” for “magic” and Madison explains a principle in the legal world I’ve yet to fully articulate.

To add my flavor to the discussion, the mantra of Mediation is Dead is best explained by adding a phrase to the end of that statement. “Mediation is dead. It is the job of the practitioner to convince the parties and attorneys otherwise.”

When you come from that place as you enter a negotiation or mediation room, if you can truly state that in your heart, then you have the ability to get past all the bullshit attorneys and parties have as expectations for a mediator and really reach some powerful agreements with parties. You reveal their vulnerabilities and get them to show their humanity. When you get past the bright, happy, peaceful moments of your mediation training and pass through your first experiences with attorneys demanding you pander to them, you will finally reach that point where their client can reach peace with someone they never believed they’d agree with again.

Saying the words each time hurts me too. Death is a scary, painful thing. I’ve had my brush with it. I’ve been affected by it. It hurts to make the choice to take the path of peace and then see the art form you love butchered by attorneys who don’t understand what the words “alternative dispute resolution” mean. It pains me to see blown up expectations of clients massaged by counsel who begin with bluster, won’t allow their clients to speak, and begin each mediation with the parties dragged into separate rooms without as much as two minutes of a chance to see how the parties interact. If these attorneys paid attention during their Civil and Family training to get that coveted Rule 31 listing in Tennessee they’d realize it’s the parties decisions that count, and their presence is to ensure everything flies legally. It’s not about what will pass muster in someone’s court.

This is also why I don’t take the time to participate in many mediator groups, watch too much CME classes beyond what’s required of me, or read too many mediator articles.  So much of it has become polluted beyond the essence of the art form that is mediation. Gone are the days of interest-based mediation and getting to the heart of a problem. You’re more likely to get business if you simply pander to positions, study up on what a judge wants, and then play at evaluative case analysis. Every mediator that goes through training and gets a listing knows that’s not mediation. Yet that is what is expected of them.

The parties that go through mediations then take those experiences where they’re told to “bring a book or a computer” and “expect to be there all day” back to their families. After they’ve hit their “just get it done” moment, they eventually express buyer’s remorse and the whole cycle starts again, albeit with more venom this time. If they have a loved one, friend, or family member who goes through mediation, expect that party to tell their friend all about how the mediator and attorneys got to talk, and their voice remained silent.

When I start mediations, I usually do so with a deck of playing cards and a close up pad. I tell the parties in my opening statement they can’t agree on a thing, just as this entire deck is completely different. My job is to help them have an effective conversation, one that gets past the anger, rage, and other emotions they may experience in this moment so they can experience a moment of unity again.  Then I turn the cards over, showing them all identical, and say “Hopefully, by the time we’re finished, you’ll walk out of this mediation just like this deck of playing cards. In agreement and harmony.”

Echoing the words of Mr. Madison above.
I am Chris Seaton.
Mediation is Dead.

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