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.



The Inevitable Shift in Resources from Lawyers and Courts to Mediation

It has long been a frustration of mine that states have set up structures and programs for volunteer mediation to resolve disputes at no pay for the mediator, while simultaneously sustaining multi-billion dollar legal (court) systems that provide a unique playing field for attorneys who are expected to charge at least $100 an hour, minimum, for their time, while often making conflicts more intense rather than less so.

We live in a world where information is easier and easier to locate, read, and apply to one’s own situation.  One of the attorney’s primary roles has been to keep up to date on specific areas of information that pertains to certain areas of law.  Yet the other role of attorneys has been, and continues to be, to WIN cases for a client in an adversarial process – a process that systematically encourages procedural tricks, intimidation, and withholding information rather than talking things out and working towards cooperation.  In both the business world and world of interpersonal relationships, more and more people are realizing that the “transaction costs” of going to court are just not worth it.

In the State of Colorado, where I am licensed, official statistics show that 70% of all parties in civil court do not have attorneys representing them.  Many analysts predict that this trend will only increase, as more people rely on the internet to get information.  In Great Britain, chat bots are providing legal case evaluations of real claims over the internet without an actual person listening and giving advice.  And in the United States, many online companies now provide legal forms for all 50 states for common matters such as divorce and writing wills.

Mediation fits in by providing an alternative venue for legal disputes – with an alternative framework and lower transaction costs.  Yet currently that venue is typically nothing more than a small conference room in a low-rent office building in the county in which you live, instead of an elaborate stone courthouse with a dome on top.  The mediator is usually a volunteer, a member of the community who can afford not to work for a few hours during the day – instead of an elected or appointed Judge with a six figure salary.  The contrast in official state support for the courts and for mediation is striking – but the difference in types of cases that each venue can handle is not.

Although we may not realize it today, the stone courthouse with its strictly adversarial system is a relic of our past that will be overcome by the laws of entropy and the laws of the free market.  The law of entropy states that energy moves from order to disorder and from isolation to dispersion.  In society, entropy means that structures and institutions only persist to the extent that they are maintained with resources and energy, but the natural state of things is to change.  The laws of the free market, assuming that they exist, state that a more efficient use of resources will be selected and favored over a less efficient use of resources.  In society, the free market means that when a structure or institution becomes too expensive to use, the people will find and use alternative means to get things done.  Mediation is one of those alternative means that addresses problems efficiently and quickly and at lower cost.

You may be wondering – what about attorneys?  There is no doubt that people will still need legal advice, and in many cases, lawyers will be needed to participate in mediation to ensure that their clients are aware of their legal rights throughout the process.  But once legal information is more readily available and a non-adversarial dispute resolution system is established and funded at a level that can serve large numbers, people will (justifiably) not be willing to pay as much for attorneys as they do now.




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.