Within the world of the law, there are two fundamental deceptions perpetuated by those who are in the system and show the world that there is “justice” for those who seek it, and “relief” for those who possess a grievance. The deceptions are that this is a “justice” system and that “mediation” works.
The first is that it’s a “justice” system. It’s one where people achieve “just” results. This is a deception perpetuated by those who choose to not give their clients expectation management. This is a deception borne out of wanting to believe the law degree they got gave them an ability to change a system that is flawed, that gives the black kid four days in jail for possessing weed, and the white college frat boy who had the same dime bag drug treatment and a diversion.
The second, more insidious one, is that an ADR (“Alternative Dispute Resolution”) process will heal families, allow for great sustainable agreements, and make sure kids are happy. This is why people are able to charge insane sums of money for “mediation training,” and why there arethose who believe in “interest based mediation” versus “positional based negotiation.”
Here are two uncomfortable truths.
First, there is no justice system. “Just” as a general rule implies that we achieve fairness in the way criminal cases are handled. “Just” means that victims are served and those who truly committed a crime are punished. If you continue to believe it must be called anything other than a “legal” system, I invite you to talk with an attorney who’s in the trenches of criminal defense and ask them how many times they’re pressured into making their client take a plea.
There is no “justice system.” As the “ripcore” band the Kottonmouth Kings once said, “it’s just us in the system.”
Second, mediation is dead. We killed it the moment we started from training “students” that “interest based mediation” was a thing and that people could follow it. We killed it the moment we told people they would be able to bring “peace and healing” into family cases where attorneys “knew” in their heart of hearts that “this agreement will never work, because Judge (x)” doesn’t want it that way and it’ll never fly in his court. We killed it when we stopped teaching people that attorneys would be in mediations, and we killed it through years of splitting parties into other rooms and tossing offers back and forth.
That’s not mediation. That’s shuttle diplomacy, and those who tell you otherwise are lying to you. These people who are involved in charging thousands to make sure you perpetuate a system where “it’s always been done this way” are deliberately deceiving you, and yet you will continue to use the “trusted” mediators because their methods of strong arm tactics, “shuttle diplomacy,” and pandering to the attorney as opposed to the client with the grievance means you will see no sustainable agreements. Eventually, parties locked in long mediation sessions will come to a point where they “just want to get it done.”
Once the “agreement” is reached, and the “case settled,” the parties will eventually hit “buyer’s remorse.” They will get to a point where they do not “agree,” they will reach inevitable conflict, and they will end up in front of a judge once more in an attempt to settle their conflict.
If the conflict resolution structure is the same as in the Volunteer State, the mediator who got the business will more than likely get return business at this point, since “disputes regarding the parenting plan” or another agreement will usually have “mediation” checked off by default during the mediation session. That means a return to a process where in training sessions, and in CLEs, attorneys are given helpful instructions on client management for mediation like “have your client bring lunch” and “make sure they bring a computer or a book because you need to let them know they’ll be there the entire day.”
Mediation isn’t just dead. It’s fucked.