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What We Talk About When We Talk About Mediation

Legal Article Guide

By: Charles Parselle

Mediation is older than any legal system. The great Bacon wrote the praises of mediation nearly four hundred years ago, in one of his celebrated Essays:

“It is generally better to deal by speech than by letter, and by the mediation of a third, than by a man’s self . . . in all negotiations of difficulty, a man must not look to sow and reap at once, but must prepare business, and so ripen by degrees.” Francis Bacon (1561-1626)

To mediate means:

1. To bring about (an agreement, peace, etc.), as an intermediary between parties by compromise, reconciliation, removal of misunderstanding, etc.

2. To settle (disputes, strikes, etc.), as an intermediary between parties: reconcile.

3. To effect (a result) or convey (a message, gift, etc.), by or as by an intermediary.

4. To act between parties to effect an agreement, compromise, or reconciliation.

5. To occupy an intermediate place or position.

6. Acting through, dependent on, or involving an intermediate agency; not direct or immediate.”

Mediation means:

1. Action in mediating between parties, as to effect an agreement or reconciliation.

2. International law, an attempt to effect a peaceful settlement between disputing nations through the friendly good offices of another power.”

Synonym(s):

1. Mediation, arbitration designate processes for bringing about agreement for a reconciliation between opponents in a dispute. Mediation implies deliberation that results in solutions that may or may not be accepted by the contending parties: mediation settled the strike. Arbitration involves a more formal deliberation, it being understood that the results will be binding on the contending parties: “the strike was settled only after arbitration.”

(All definitions are reproduced from Webster’s Encyclopedic Unabridged Dictionary of the English Language)

Webster’s synonyms tend to confuse mediation with arbitration. Arbitration is designed to produce a result with a winner and a loser; it is a not a process for “bringing about agreement for a reconciliation.” Mediation unlike arbitration is not designed to produce winners and losers, but precisely a reconciliation of differences. Mediation attempts to be win-win. They are both “alternative dispute resolution” mechanisms, but one bears little resemblance to the other.

Webster does accurately state the role of mediator as intermediary between parties to a dispute. Mediation is as old as civilization and pre-dates anything resembling legal process. The mediator is a go-between, who passes busily from party to party in an attempt to assist them reconcile their differences. In late classical Athens, the comedies of Menander often featured a wily slave who carried messages, and in the country house farces beloved of Victorian audiences, the chambermaid often served as an intermediary between two lovers. The Aztecs, who had no written language, used messengers or intermediaries to convey exact messages of outstanding length. Carrier pigeons have been used to carry messages for hundreds of years, and can navigate over endless uncharted miles, but so far no carrier pigeon has become a mediator.

Though a mediator may lack some of the abilities of a carrier pigeon, she can and does carry messages, but that is the least of her functions. She is a trained professional who has the skills to overcome numerous obstacles, the perseverance to continue the process despite all impulses of the parties to end it, and who is able at length to bring them to closure of the particular dispute despite their differences, and sometimes achieve a full reconciliation. Such results are not easily achieved, and such skills are not easily learned.

The textbooks say that there are three ways to mediate, or three types of mediator. These are 1) evaluative 2) facilitative 3) transformative.

An evaluative mediator is one who is prepared to express an opinion as to the likely outcome of a dispute. Parties who seek an evaluative mediator will often choose a retired judge. The prerequisite for giving an evaluation is subject matter expertise. Judges, who have decided hundreds or thousands of cases, or who have observed hundreds of juries reaching a verdict, are often trusted by parties to render an evaluation, which the parties may find useful in coming to a decision about their particular dispute. However, not only retired judges are used for the purpose of evaluation. Persons engaged in a construction dispute will often go to an engineer, general contractor, or other person with subject matter expertise.

A facilitative mediator is one who stresses that the function of his job is to enable, or facilitate, parties to communicate and negotiate with each other, in order to arrive at their own evaluation and resolution. A facilitative mediator may consider it unethical to render an opinion. The facilitative style may require greater patience and skill in enabling parties to craft their own resolution, than may be necessary for an evaluative mediator. Parties may prefer an evaluative mediator when they wish to resolve their dispute and proceed on their separate ways. Facilitative mediation may be more desirable where the parties wish to, or must, engage in a continuing relationship with each other, so that the particular dispute is merely a roadblock that needs to be overcome in order to enable that continuing relationship.

Many mediators are perfectly willing to be either evaluative or facilitative, as the situation demands.

The third type of mediator is called “transformative”, and the goal of transformative mediation is far bolder, and more like therapy, than the goal of traditional, evaluative or facilitative mediation. “Transformation” suggests that the goal is to affect a transformation, in the parties themselves, and in their relationship. Transformation means (1) act or process of transforming; state of being transformed. (2) Change in form, appearance, nature, or character. (3) Theatrical, a seemingly miraculous change in the appearance of scenery or actors in view of the audience.

In “Mediating Dangerously,” (2001) Kenneth Cloke, a pioneer of transformational mediations, writes:

“The transformational or elicitive model of mediation… views conflict as something to be learned from, and the parties as ready for introspection and fundamental change. The mediator becomes an empathetic yet honest agent, whose role is to elicit recognition and empower the parties to solve their own problems. … Personally I use a modified version of the transformational model, based a more intuitive, integrative, dangerous approach to mediation. I neither direct nor stand apart from the conflict, but interact with the parties and reflect on possibilities, based on intuitive assessments at the time.”

The function of a mediator is to enable change. A mediator is a catalyst whose presence and skills enable change. The type of change so enabled is the most difficult of all – change of mind.

Change is needed for movement to occur. Movement is needed for the disputants to approach each other. The disputants must approach each other for negotiation to occur. Negotiation must occur for solutions to be explored. Solutions must be explored for the disputants to achieve a resolution that satisfies competing interests.

At some level, disputants cherish their dispute, and the emotions and attitudes that accompany it – they want to lay down the burden yet are reluctant to do so. They want the satisfaction that accompanies winning. They want not merely to win; they want to other side to lose, and preferably be manifestly seen to lose.

When an outsider hears both sides of a conflict, she may get the impression that the disputants are in illusion, the competing illusions colliding in conflict. One or both of them has “got it wrong.” If both sides are brought to share roughly the same reality, or view of the case, they settle. This is called by many colloquial expressions, like “getting into the same ballpark,” “getting into the same zip code,” etc. The presence and skills of the mediator tilt the balance in favor of reality, rationality, and closure.

The three bedrock principles by which mediation is conducted are (1) confidentiality (2) voluntary participation and (3) party control of outcome.

Charles B. Parselle is a California mediator, arbitrator and attorney. He graduated from Oxford University, then joined the California Bar in 1983. His articles are regularly published in legal magazines, such as The Daily Journal, Bar Notes and Mediate.com. He is the author of the book, "The Complete Mediator." For a free consultation, please contact Mr. Parselle through his website: http://www.parsellemediation.com

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