Mediation trainers do their students a disservice by separating truth from reality. It’s understandable, because mediation is focused on an idealistic view of conflict resolution. The reality is worth consideration, and failure to teach that reality or understand the mechanisms that cause mediations to fail, are a reason why mediation is dead.
Most schools of mediation teach a style called “interest based mediation.” This line of thinking asks the mediator to push aside a party’s positions (I want x amount of money or extra time with the kids) and focus on interests (why a litigant wants money or extra time). If a mediator can uncover a party’s interests, they can focus on “expanding the pie” and getting both sides to come up with creative strategies that will meet everyone’s needs. This results in a “win-win” scenario for all.
The reality is when sides meet for mediation they won’t be focused on their interests. Usually when parties get together for a mediation they’re so focused on the raw emotion of the case they can’t look past how much they hate the person on the other side of the table. The mediators who don’t use some method of attention distraction (white board, flip chart, large monitor) only add to the problem, since the parties will be focused on how much they hate the other person. When both sides are represented by attorneys, the lawyers will focus on the positions. It’s what we do. There’s no time for tummy rubs when you’re negotiating a parenting plan.
Mediators are taught initially the best practice is to keep both parties at the table and get them to talk through their problems, with the aid of the mediator, and eventually come to a final conclusion. The reality is a stark contrast. Usually the mediator will issue a brief “opening statement” outlining the process, the rules, and his or her role. The parties will then get a chance to make statements regarding what brought them to the table in the first place. These statements will usually be made by counsel, since once the parties reach mediation most simply don’t want to talk to their soon to be ex spouse.* After that, the parties are ushered into separate rooms, and the mediator abandons his** training completely, listening to both sides and then taking offers from room to room.
This tactic, “Shuttle Diplomacy,” leaves a revolting taste in the mouths of those who believe in the ideals of alternative dispute resolution. But mediators require business, and those who are savvy enough to keep a recurring stream of lawyers coming in the door know this style is preferred. It’s not that mediators are keen on abandoning principle for money. It’s that they want business and prefer to keep a steady stream of income. It’s usually not the clients selecting the mediator, after all, so good business sense would involve catering to the lawyers who pay your bill with the client’s money.
Another tactic lawyers love that mediators hate is called “evaluative case analysis.” Alternative dispute resolution models are called “alternative” for a reason. The default “dispute resolution” mechanism is called “litigation.” If a mediator is keen on using interest based mediation, discussions of what might happen in court should be off the table. The focus should be on what the parties’ needs and wants, in that moment, are. Yet far too many mediators find it completely acceptable to walk into a room and tell a client “You’re in this court and Judge (x) will most likely rule this way if you go to trial, so it’s better off if you settle here. It’ll save you time and money, and it’ll make sure you get most control of the settlement you want.”
Evaluative case analysis is not mediation, and the pressure it places on a litigating party is severe. Instead of looking to an alternative route to settlement the mediator tells parties the best time to close the case is right then and now. It implants a fear of losing control in a situation where a litigant probably already feels out of control. And saving time and money are crucial to litigating parties since professional services cost money. This method implants a suggestion in the litigant’s head that only in the present moment can they take control of their lives again and reach an effective outcome. It’s dangerous to the client and unprofessional for the mediator. Yet it works, and attorneys nod, because attorneys are trained to think of how a certain judge would rule in a similar setting.
Another route in which trainers fail their students is in setting hour goals and breaks. My general rule of thumb is after four hours of mediation time I perform a “check in” to see if the parties still want to continue. This is because most people aren’t used to marathon negotiation sessions. Yet we expect them to sit in a room with their lawyer for eight or nine hours until a case is settled. That’s against the grain for the layperson, and it causes a dangerous psychological component to the mediation I call the “get it done” factor.
The “get it done” factor is a moment when a litigating party breaks down in mediation and just starts agreeing to everything. It’s not that they actually agree to what is being said, it’s the litigant’s mind shutting down and simply wanting to sign whatever is necessary to leave. Most mediators see this as a positive sign and encourage the party, cheering them on as they keep making agreements they may later regret. The attorneys are happy to see the case take positive steps forward. What no one observes is the person taking steps they may later regret because they want out of the mediator’s office and to return home.
When that party returns home and reads the signed document that will eventually become a binding court order, there’s a good chance they will experience “buyer’s remorse” very quickly. Since the document they signed is now binding on the other party too, the remorseful litigant will start to find ways their ex violated the document. This causes return business for lawyer and mediator alike, since most mediators insert language into their documents suggesting mediation as the preferred method of handling disputes. The smartest mediators make the client and lawyer sign or initial every page of the agreement, so if a litigant or their attorney take the document before a judge one of the first hurdles to overcome is an explanation of why there’s a dispute over an agreement containing your signature on every page.
Those training mediators would do prospective ADR students a better service by teaching the ideal model and then peppering that model with a good dose of reality. No law student is harmed by learning the case law and receiving a dose of how the studied holding actually plays out in a courtroom. The same standard would best serve mediators and produce a new breed, one that knows how to execute the art form and what will happen when they encounter pushback. Trainers are oblivious to this or don’t care, and the split will continue to give mediation a bad name.
The disconnect between training mediators and practicing mediators is yet another reason Mediation is Dead.
*Mediation is most common in family law cases with children. This is why I used this as an example.
**The “his” is intended only to keep this from getting cluttered with pronoun abuse.