Two weeks ago, I spent four full days in training to become a volunteer mediator with the Community Dispute Resolution Center (“CDRC”). The experience was fascinating and superb, and I look forward to the next steps in my training for certification to begin actual mediation. While I have much to say in praise of both mediation and the process by which CDRC trains its mediators, this column will focus on some of the important differences between mediation and litigation, and the possibilities that those differences offer for approaching human conflict in a more empowering way. The column will begin by examining the opening statement that mediators give to the parties to mediation, an introduction that reveals a fundamental strength of the approach.
Opening Statement
In New York State, residents have access to mediation as one method for resolving their disputes. There are mediation centers distributed in counties throughout the State, and many mediators participate as volunteers. Before beginning my training as a mediator, I was unaware of how broadly available mediation is to parties in conflict. I also had only a vague idea of what exactly mediation was, although I was drawn to what I imagined it to be: a way of helping potential litigants resolve disputes outside of the courts and outside of other formal venues for dispute resolution.
My conception of mediation was accurate but quite incomplete. For one thing, a dispute need not be headed for (or even justiciable by) litigation to be appropriate for mediation. If you and your teenage daughter have been constantly arguing over the curfew that you set, the two of you (or more members of your family) can seek mediation. For another, the definition of “resolution” for purposes of mediation is far broader and more flexible than it would be in litigation: you and your teenage daughter might find that what you individually want from her is respect and engagement, and what she truly wants from you is attention to when she is feeling overwhelmed and anxious. You may leave the mediation without even talking about the curfew and yet feel satisfied that you are on a far better footing than when you arrived.
Before beginning a mediation, the mediator (or one of the two mediators, since mediations often include co-mediators) will describe mediation to the parties. Instructors sometimes called this an opening “conversation” rather than an opening “statement,” because parties can and sometimes do begin talking substance before the mediator has concluded, and that can be perfectly acceptable. The objective of the opening statement is to let the parties know a number of things about the mediation process and some of its underlying values.
The mediator informs the parties that mediation is a way of supporting people in conflict in having a conversation with each other—perhaps a different kind of conversation from the sort that they have been having up until now. Mediation is a voluntary process, and either party can decide to take a break at any time, request private sessions with the mediators, or stop the conversation altogether. Parties learn that the mediator is an impartial participant in the mediation and will not resolve the dispute or offer advice about its resolution but will be present for each party to listen carefully to what each has to say and to help them both hear themselves and each other and direct the discussion as they see fit.
The mediator lets the parties know that mediation can help them understand each other’s perspectives, permits them to share information with each other and/or figure out next steps, and sometimes results in an agreement that might eventually be formalized with the assistance of the mediation center’s staff. The mediator will keep the mediation confidential from people outside of the mediation center, and the law protects that confidentiality with an evidentiary privilege, although the parties themselves are not bound by confidentiality. An exception to confidentiality applies when suspicion arises about child abuse or the abuse of an impaired adult or an elder. Parties can create additional ground rules for the conversation if they like, such as “no interrupting” or “no raised voices,” but such rules will not be externally imposed or enforced by the mediator, and parties can modify them as the mediation progresses.
The opening statement expressly references several of the values that underlie mediation. Voluntariness is one, and it means that the mediator will not force parties to have a conversation that the parties do not want to have: parties are not hostages. If a judge has either suggested or directed that parties in litigation go to a mediator, each party will have fulfilled her obligation by showing up and will not need to engage in mediation beyond that one step. The right of confidentiality ensures further that judges cannot demand that mediators tell them whether the parties “really mediated.” All that a judge would be told by the mediation center is that the parties came to mediation, as directed by the court. Further conversation is accordingly freely chosen by the parties.
Confidentiality and mediator neutrality are explicit values that support another important mediation value not always referenced expressly in the opening statement: safety. Having an impartial mediator present who will not reveal what the parties say can help parties feel safe in expressing themselves, knowing that someone (perhaps only the mediator) will hear what they have to say in a nonjudgmental and open manner. Party self-determination, another core value of mediation, means that the mediator will not “take over” but will instead trust the parties to figure things out for themselves, with the support and undivided attention of the mediator to what each party has to say. Trusting the parties to determine what is best for them is central to mediation practice and allows parties to be empowered and to recognize each other’s feelings, needs, and experiences in ways that they may never have done before.
How Different Is This From Litigation?
Mediation, and in particular “transformative mediation” (the kind of mediation that I am studying, distinct from the “facilitative” and “evaluative” varieties), is so different from litigation that it may be easier first to identify the shared characteristics rather than the distinctions. In both litigation and transformative mediation, people in conflict come to a neutral third party seeking satisfaction. Beyond this common attribute, however, lie stark differences, a few of which I will note here.
First, the mediator will not decide the dispute but will instead support both (or all) parties equally in their own efforts to resolve the dispute by themselves. Second, the hope is that the parties will begin to hear each other and take in the other’s (or others’) perspectives rather than that a judge will hear and take in what the parties are saying and decide who is right and who ought to win. And third and not surprisingly, “victory” in mediation is about the interaction between the parties, while victory in litigation is about whose account of the facts and the law is accepted by the authority in charge.
One way in which I have come to appreciate the differences between these two forms of dispute resolution is by contemplating the degree to which the litigation model has infused the manner in which people in conflict more generally interact with one another. When people have an argument, it is common for each participant to say what he has to say as though there were some neutral authority figure listening and poised to decide the dispute, even when there is no such “decider” in attendance.
An employer might say to an employee, “I have done everything I can to accommodate your religious needs, and now you’re just being a spoiled brat,” to which the employee might respond, “What you have done is single me out for ridicule among my secular co-workers. From the moment you learned of my religious affiliation, you made it your mission to get rid of me.”
Though the two people in this interaction are technically speaking to each other, it is easy to imagine that each one has in his or her imagination a neutral judge or jury that he or she is addressing and before whom he or she is building a case. The employer claims that he has satisfied the requirements of anti-discrimination law and that the employee is making crazy demands. The employee, in turn, claims that the employer is motivated by anti-religious animus that has resulted in a series of actions on the employer’s part aimed at forcing the employee out of the position based on her religion. The imagined neutral third party, in the fantasy of each disputant, will hear the assertions and then rule in favor of the “right” side.
When people in conflict act on the litigation model, they do so despite the fact that the supply of litigation space is highly constrained, even for those who actually seek it. Most lawsuits ultimately settle, and this is not typically because the parties have happily found their way to “yes.” Instead, they have often learned that the promise of a day in court is far more elusive and expensive than they had imagined. This may be why, regardless of outcome, people who have been through the litigation system of dispute resolution experience rather low levels of satisfaction with the process as compared to participant satisfaction with the mediation process. It is ironic that people’s default style of disagreeing appears to mimic a method of conflict resolution that is in short supply and that seems regularly to fail to meet the experienced needs of the parties to it.
How Mediation Alters the Dynamic
In mediation, when parties address the mediator and ask “Who do you think is right?” or “What’s your opinion about all of this?,” several things are noteworthy. First, the mediator will refuse to answer the question and will instead reflect back the feelings of the parties, by observing, for example, that “you feel frustrated with this conflict and wish that I would tell you both what to do.” Second, transformative mediation theory regards the request itself as a manifestation of party weakness, a sign that the party experiences herself or himself as lacking the strength to resolve the dispute with her or his partner(s) in conflict, an experience that might shift during the course of mediation.
In litigation, by contrast, when the parties come to court and, in effect, ask the judge or jury to answer the question “Who do you think is right?,” the judge or jury confidently provides an answer (in those cases that go to verdict) after hearing from both sides, presuming that whatever the parties have presented to the court provides a sufficient basis for an outsider to declare a proper resolution. And the court system does not take an interest in the fact that parties may experience themselves as weak, as the system actually presumes that parties are incompetent at (i.e., inherently weak and not up to the task of) representing their own interests and thus require representation by experts (attorneys) who will speak on their behalf.
Far from a problem, in other words, party incompetence to self-advocate is simply a foundational premise for litigation, and the rare party who represents himself (outside of small claims court), even if legally trained, is often said to have “a fool for a client.”
Transformative mediation takes a much more optimistic view of both party competence and the possibilities for resolution without the need to take the dispute out of the parties’ hands. In the minds of mediators approaching a mediation, the operative assumption is that the mediators are not the ones with the answers. In the immortal words of Donald Rumsfeld, mediators remain humble because they are cognizant of both “known unknowns” and “unknown unknowns,” given that the parties have been dealing with each other and have a history that may long precede the mediators’ entry into the picture.
If anyone can figure out how best to move forward, then, it is the parties and not the mediators. What the mediators can do is to be present with the parties and allow them, together, to set the agenda, change the agenda, and jointly determine what—if anything—they want to do next.
When a party says “He hates me! He never listens to anything I say!,” a mediator might reflect back what she is hearing: “You believe that he hates you, and you feel like he’s never listening to you.” Upon hearing this reflection, the party might respond, “That’s right! Never!” and could experience some satisfaction in having been heard by the mediator.
Meanwhile, the other party would have had the opportunity to listen in on the reflection and might find it easier to hear from the mouth of a neutral person and to respond to it. “I don’t hate you at all. I love you, and I want to hear what you have to say, but I can’t stand it when you say things so accusingly!,” the party might reply. Or the party could say, instead, “It’s true. I hate her, and I don’t want to hear what she has to say. I’m done here. See you in court!” The exchange, in other words, can lead the parties to clarity, in which—in this hypothetical scenario—they figure out either that (1) one has misunderstood the other’s feelings and that something else accounts for their difficulty in communicating, or that (2) the only feelings left between them are negative, and neither is willing to compromise.
This exchange is just a (fictional) snapshot, of course, so the hypothetical conversation might take very different turns as it develops. The mediators, trusting the parties’ competence to make their way through the conflict with support, are comfortable with whatever direction the exchange might take, staying with the parties at all times and reflecting, summarizing, and checking in with how they’re feeling about the process (and whether either might need a break or some private time with the mediators). Mediation thus leaves open the possibility of litigation, but it allows the parties more comfortably to opt out of that possibility in the (many) instances in which they feel they can approach their conflict more productively without an authority figure.
Mediation As Reality
I find the theory and practice of mediation, as I have begun to learn about it, very exciting. Part of the reason for my excitement is that even though some cases are best suited to litigation, there persists an illusion about litigation that I think may hark back to childhood fantasy. We each once imagined that if we ran to Mommy (or to Daddy) to tell her about the unfairness we just encountered with our co-disputant (perhaps a sibling), she would be able to fix it for us. Even as children, though, this was largely an illusion.
Parents can impose a rule or decide who “wins,” but parents make mistakes (obviously), and an externally imposed resolution is ultimately disempowering to the participants, especially when the “parent” is a judge or a jury and the participants are largely silent while representatives speak imperfectly on their behalf. And significantly, the long wait that precedes the courtroom makes the day in court something of a fantasy too. If people really force us to take them to court to enforce our rights—even our clearly established legal rights—then we will generally have to wait a very long time for the victory that we seek.
In mediation, there is no “grownup” who will tell us what to do. Instead, there is a trained person who trusts us to figure things out for ourselves. We can come in arguing about how high our neighbor’s fence should be and find, in our conversation, that what we really want is something very different, something that has little to do with the fence. It may have more to do with how we look at each other over that fence and what it means to show respect. Like any conversation that we might have with a friend, a colleague, or another person in our lives, we cannot predict where it will go in advance, and it is far from clear that we would even want to try. The mediator not only accepts this indeterminacy but celebrates it and invites the parties to do the same. And in doing so, parties routinely learn that they are far more competent and capable of figuring things out than they could have previously imagined.