Bite the Hand That Feeds You

If you believe that mediation is all about reaching settlement and nothing more … stop reading. If your experience in mediation as a participant or advocate falls short of your expectation than continue reading for some insight.

Although mediation has been around since biblical times, the process gained its legs in the business world in the 1980’s. Borrowing from the collective bargaining experience, family systems theory, community development, and a host of other practice areas, training programs were established seemingly everywhere for professionals in the fields of law, social work, human resources, accounting, construction and a variety of other business fields. Programs focused on communication skills, conflict theory, negotiation techniques and models for facilitating a mediation session. Similar content continues to form the foundation for most mediation training programs today. But the significant difference between mediation training programs currently and in the past relates to the goal of mediation, and it is not at all surprising.

Ask attorneys representing clients in mediation today what their goal is, most will say “settlement.” Some will say, they are there to satisfy the courts or a contractual requirement to attend a mediation session. Few if any will say that their goal is to reach a mutually beneficial outcome in which all parties achieve a result that is as good as possible at this point in time. The notion of win-win is all but gone today in commercial disputes, even if a realistic interpretation of this concept is simply getting the best you can under the circumstances presented; a concept that is almost always possible to achieve. The loss of what some see as a utopian view of mediation carries over into the training arena.

The content of today’s training programs appears similar to those of the past but what you get are practice models where it is acceptable and often recommended to keep parties apart at all times; to skip an opening statement designed to create an environment for positive discussions; to have a settlement document signed before all parties can collectively digest what they have agreed upon, and many other practices that contradict systems theory, collective bargaining principles and other practices from which early mediation models so heavily borrowed.

Some will say that today’s practitioners have simply adapted to the needs of their clients and that being flexible in their approach is what makes them an effective mediator. I have no doubt that there is some truth to this. However, it may also be true and I believe likely, that many mediators have forgotten what they initially learned about effective communication techniques, question types and response styles, conflict theory, and interest based negotiation, or worse yet, never mastered these skills. Their mediation mindset has been clouded by their settlement rate and they rely on whatever innate skills they possessed prior to learning mediator skills. In a field that is now dominated by attorneys, most mediators rely on their advocacy skills and the potential of mediation goes unfulfilled. Settlement rates may be high but participants understanding of the mediation process is lacking and satisfaction with its outcome declining.

A possible way to restore the promise of mediation may be found in an article I published several years ago, Effective Dispute Resolution: A Mediator Learning Model  (American Journal of Family Law, Vol. 8 221-223, 1994). The article focuses on the components (not content) of an effective learning model and concludes with the following observation:

It is my belief that although ongoing education is to be encouraged and courses labeled as ‘advanced’ should continue to be developed, it may be equally, if not more important, for the mediator to periodically train in the same modality all over again … what occurs after the training is as important as the training itself. The new insights gained through the application of the mediation process and its component techniques prepare mediators to view things differently than when they were first trained. They have a new perspective that may raise new questions and concerns as well as provide answers and insight.

4 thoughts on “Bite the Hand That Feeds You

  1. Bob Arrington

    This is a thoughtful essay. As a practical matter, if a mediation results in “settlement” but not closure, it is more likely that a party tries to re-trade the deal or otherwise wriggle out of the settlement agreement.

  2. Sara Rickover

    As an attorney, I always thought a case settled when the parties were equally unhappy with the settlement. As a mediator, I recognize this isn’t the best result. It works when there is no need for an ongoing relationship between the parties, because it permits them to move on with their lives separately. But where they must work together in the future, it is important to resolve the relationship issues as well as the monetary.

    1. Harry Kaminsky Post author

      What often occurs in mediation sessions today are negotiations dealing with the monetary amount for which the case will settle and nothing more. In some cases this is appropriate as parties have determined that their interests are entirely tied to dollars. But problems surface when parties incorrectly identify interests or worse yet when they fail to identify their own interests and articulate only their position. When this occurs, even in instances where there is no desire to maintain relationships, they may settle their case but they don’t feel satisfaction with the outcome. Although they achieved a settlement, they did not reconcile their interests, and the promise of mediation goes unfulfilled.

  3. David Goldwasser

    Wow, nicely done Harry…gives new meaning to the old saw…everything old is new again. Impressive stuff.


Leave a Reply

Your email address will not be published. Required fields are marked *