Transparency for Mediators


One common presentation topic at conferences and networking events is “Tricks of the Trade” – a talk about mediation techniques that a mediator can use, usually without the parties’ knowledge, to get the parties talking or to move the parties towards a resolution.  This topic appeals to mediators because there is a common perception that mediation is a magical process that resolves intractable disputes, and that if we as practitioners can learn to do that magic, we will become a successful mediator.

I am here not to dispel the concept of magic in mediation, but to posit that secrecy is the enemy of said magic.  I believe open and honest disclosure about what you are trying to do is the more effective way to mediate, and furthermore, it ultimately demonstrates commitment to the values of alternative dispute resolution as a whole.

For example, one technique that mediators use is to preface their restatements with the phrase, “I need to make sure I am understanding what is going on.”  This technique is used to suggest to the parties that the restatement of the opening statement is for the benefit of the mediator, while secretly it is directed at helping the opposing party to hear the same statement from a more neutral voice.  While in fact the mediator does need to understand the facts of the case, this technique is going to get stale if you repeat it over and over in one mediation.  The better option is to say, right after the first opening statement, that “I will be restating what you have told me, both for my own benefit to make sure that I understand you, but also for the benefit of communication, because the other party will hear your statement from a neutral voice and perhaps they will then be able to understand it better.”  If you say this, the parties will get a preview of the type and degree of open communication that you are hoping they will use with each other. 

All mediators have an interest in the parties communicating to each other and understanding each other, regardless of the outcome of the case.  It follows that, just like the parties, the mediator should make his or her interest in communication known.  If the mediator feels strongly about a particular case reaching some sort of resolution, the mediator should also reveal that interest (without taking sides!), because that desire to reach a resolution will affect the mediation whether the mediator is aware of it or not.  In most cases, the parties will not be offended by a mediator’s desire to reach a resolution.

Tricks aside, the more open and transparent you are about how mediation works, the more the parties will trust that you are taking them seriously and that you are giving them the opportunity to exercise self-determination by being informed about the process.  Furthermore, you might even teach them how to mediate their own conflicts by themselves, which (might be bad for business) is ultimately better for society.









What about guaranteed outcomes?

It is highly controversial to suggest or to claim that you, as a mediator, can guarantee an agreement to a dispute before or during the mediation process.  The ethics of mediation require that the parties determine the outcome of the dispute rather than the mediator, and that the mediator not favor or disfavor any particular outcome.  Thus it is assumed that to guarantee an agreement would be to hamper the parties’ self-determination and threaten his or her own neutrality.

Taking these considerations into account, I respectfully disagree.  I believe that a mediator can attempt and intend to reach an agreement with the parties, so long as the mediator does not have any favor or disfavor for the content of that agreement or the completeness of that agreement.  In other words, if a partial agreement on a few of the terms of the dispute counts as an agreement, and if the mediator is completely neutral as to the content of the agreement, than it does not compromise party self-determination nor mediator neutrality to guarantee an agreement prior to the start of mediation.

My reasoning for examining this question is as follows: potential mediation clients look for mediation for a specific purpose, and that purpose is usually to reach an agreement on a specific issue.  The ability to facilitate an agreement is the service that mediators are providing to their customers.  Like any other service occupation, the job is valued on the service it provides, i.e., there is no inherent worth in the service – it only gains value in the eyes of the consumer who either gain value or lose value from it.



Replace the Courts with ADR

I do mediation, and in New York, the state provides a certain amount of funding for Community Dispute Resolution Centers in each county.  The centers provide free and low cost mediation/dispute resolution services to the community for cases including child custody and visitation, neighbor disputes, parent-child disputes, elder transitions, special education decisions, landlord-tenant disputes, and restorative justice.  Short of felony offenses that must be handled in criminal court, we could handle any type of dispute.  But we do not have the funding nor the capacity to take on the full array of cases because the state only allocates $5.4 million dollars a year to be divided by 20 mediation centers that cover all counties in New York.

Why do the mediation centers receive $5.4 million while the Unified Court System receives approximately $1.9 billion dollars each year?  The fact is that the state, the courts, and people in general do not see the centers as a clear alternative to the courts.  We are seen as part of the court system, and currently our funding is allocated within that framework… but it doesn’t have to be that way.

Imagine a world where the mediation center is a large stone building with a dome and security guards and rotundas and clerks offices and meeting rooms.  Imagine a world where people only go to court as a last resort, after they have tried to work things out with the opposing party.  Imagine if you could handle a dispute with any person or company in a confidential setting.  Imagine knowing that you will always have a say in the outcome of the dispute.  Imagine if we had a system that built and maintained relationships instead of fomenting adversity and distrust.

New York State could create an alternative dispute resolution system that equals or exceeds the jurisdiction and power of the state courts.  And it would not cost $1.9 billion.  I have not done the budgetary projections, but I promise you that it will be cheaper than $1.9 billion per year.  I would bet that it would cost less than half that amount.

Statewide, 74% of the people who come to a mediation center reach agreement, and 92% are satisfied with mediation.  Are 92% of the people who go to court for a civil (non-criminal) matter satisfied?  I doubt it.