Adapting To The Adversarial System
The idealists in the mediation movement have struggled to maintain the vision of the forefathers and foremothers who discovered the process. This has led to a complicated but critical discussion about which parts of the process are working and which are not. The central focus of the process that has been under scrutiny is whether or not to conduct a joint session, a key communication piece of the process. Many believe that giving up on the joint session is relinquishing the ideals of its founders to the economics of the marketplace. The answer lies in viewing joint sessions as part of the dynamism that sparked the ideals of self-determination and empowerment, not as static, formulaic components that one does because it is so written in the books. The concept of a joint session is actually a fluid opportunity to advance both the cooperative and competitive players up the field. On the cooperative side, it can be done with or without clients present, depending on the issues that have surfaced at the time. On the competitive side, it allows the mediator a chance to lead by example and suggestion, essentially coaching parties to make appropriate arguments that fit the informal setting of a conference room as opposed to a courtroom. It can be done on an as needed basis as opposed to early on when tensions are high and the mediator has not had a chance to diagnose the impediments to the case.
The debate about self-determination and empowerment seems to be about the neutrals wanting a certain type of experience that often parties are either not interested in, or not comprehending its value to their cause. It is also irreconcilable with the introduction of deception into the process with impunity. As a service industry, the role of the mediator is to help optimize the objectives of the client that often has nothing to do with self-determination, control and some of their other ideals identified. Sometimes they just want a deal so they could close the file in a way that process is not their priority. Other times they need to deescalate and find a soft landing before settling. The mediator is deputized with finding that sweet spot and helping them through the passages of conflict, knowing full well that folks might not be truthful and open, a concept that would not be permitted in an adversarial proceeding.
Read Part I: Introduction
Read Part II: History
Read Part IV: Adoption by the Courts
Read Part V: The Drift of Mediation
Read Part VII: What Approach Actually Works?
Read Part VIII: Make Some Music With Lawyers
Read Part IX: Arguments With Myself About The Future
Read Part X: A Practical View of the Future
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