Mediation is a process where parties come together to solve their own disputes. The parties - with the help of a mediator - are expected to find a solution to their own problem. One of the advantages of mediation is that it keeps the control over the outcome of their dispute with the parties.

There are those who believe that mediators worry too much about process. A well structured process, however, provides an opportunity for the parties to engage: to explore, to understand, to enhance their sense of competence, to be part of the solution. These are important human psychological needs.

The mediator's role in mediation is not to tell the parties what to do, but rather to help them to understand the issues and to invite them to explore and create possible solutions. Certainly, there are some mediators who are more 'evaluative' and who have no difficulty sharing their opinions. There are different perspectives on this - some quite strongly held I might add - and there are no doubt advantages to having someone able to predict "what the courts would do" particularly if this is what the parties expect. When mediators evaluate, however, explicitly or otherwise, the line between an imposed resolution and party autonomy becomes somewhat blurred. Evaluative mediation is, qualitatively at least, a different process.

When parties come together in a traditional (for want of a better descriptor) mediation process - one which allows them to figure out for themselves how to solve the problem - the benefits extend beyond the resolution of whatever immediate distributional issue brought them to mediation. Participation in a well structured problem-solving process will meet fundamental human needs described by the Kaplan's model. And, often times the agreements the parties reach at mediation can be qualitatively better than those which might have been imposed in an adjudicative process.

Environmental psychology confirms what I think many mediators already understand - that is, that when a decision is imposed, the benefits of being part of the solution are lost. Of course, facilitating such a process takes a different skillset than telling someone what to do. For lawyers in particular, telling people what they should do sometimes comes easier than letting them figure it out for themselves. In this short video, Professor Len Riskin over at mediate.com speaks about the need to respect party autonomy and his own early struggles with the urge to tell the parties what to do.

http://www.mediate.com/articles/riskindvd02.cfm


From the archives at:

http://therpmproject.blogspot.ca