Where Have All The Idealists Gone? Long Time Passing, Part V

The Drift of Mediation

Like any new service or product, people started to alter the process of mediation in the adversarial system to meet their objectives. Litigators needed to find out quickly if appropriate resources (money) were available for their case. In order to learn if the process of mediation would be fruitful, litigators encouraged the mediators to bypass the basic essence of what drew the idealists to the field in the first place, self-determination and empowerment through communication. Instead, litigators appropriately sought to jump into the negotiation phase of the process in order to diagnose the availability of proper settlement funds. From a process standpoint, this meant avoiding any opportunity to present their case in a joint format to the other side, but to rely on private conversations with the mediator which may or may not involve transparency, depending on how much the advocate trusted the mediator.

Some parties pushed back and encouraged the use of a joint session, particularly if there was an emotional roadblock that needed addressing. Others approached the joint session as a means to make legal arguments and display conduct normally reserved for the courthouse. Legal arguments conducted in joint session were often disturbing in that it tended to alienate the parties as opposed to bringing them together. Some mediators passively permitted this process to occur, and joint meetings of parties and counsel began to be poorly received. Since the goal of a legal dispute is to resolve a conflict through negotiation or trial, advocates chose to see the mediation process as a chance to understand how their opponent viewed the end game of a case without putting all their chips on the table. Lawyers concluded that it was not a good use of their time to be in the same room with their opponents, and mediators began to take on the role of settlement judge, using shuttle diplomacy exclusively to resolve disputes. In some cases, the lawyers never had the chance to actually see their opponents throughout the process. Many cases settled this way, though client involvement was substantially reduced.

The net result of this drift from a client centered or empowerment approach to a straight distribution of resources through shuttle diplomacy was an outpouring of criticism by the mediation community that “their” process was taken away by the legal community, and that they were no longer satisfied with their roles as neutrals. The mediation community continued to reap substantial financial rewards for acting as neutrals, but professional satisfaction was at an all time low. The legal community continued to embrace mediation but viewed it more as a means to an end, not as a dramatic finish to the case. This led to some dissatisfaction with the mediation process. Some mediators continued to be communication oriented, attempting to maintain the usefulness of joint sessions despite resistance from their clients. Many of those mediators found a drop off in their business because they were not viewed as dealmakers. Unless the mediator was viewed as someone who could “close” or “settle” a case, they began to be seen in the marketplace as too soft, often viewed as commodities as opposed to the artists the idealists had envisioned.

The economic drive that directs a litigator to get the best possible deal for their client hit head on with the mediation movement that was concerned with harmony, cooperation and of course, confidentiality. This impact was forceful and disruptive to the idealists in mediation who maintained a type of ministry in their work, with some forgetting the importance of flexibility. The question was not whether the process of mediation was going to be thrown in the big heap of rubble that represented many other unsuccessful services piled onto a dysfunctional adversarial system. The real question was whether lawyers and mediators could adapt this confidential process to fit the needs of the litigated dispute at the bargaining table, while balancing the importance of case closure.

Stay tuned for Part VI:  Adapting To The Adversarial System.

Read Part I: Introduction

Read Part II: History

Read Part III: Early Adopters

Read Part IV: Adoption by the Courts

Read Part VI: Adapting to the Adversarial System

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