What Approach Actually Works?
In order to help the parties reach their goals, sometimes the most effective and transparent exchange of information occurs early on and privately, before the parties ever have a chance to meet each other in a joint session. If that works, why not use it? If it doesn’t work, mediators always have other tools to use, including various hybrid forms of joint meetings to call upon. Remember, lawyers have their own constituents to consider, and many are bottom line people who are not as process oriented as the mediator. While process counts, it only counts if it is effective in generating movement in the negotiation and ultimate resolution of the case. To focus on process for process sake only is to be naïve about the goals of the participants to mediation.
Like the adversarial process, the mediation process has an interconnectivity of parts that make the whole greater than its sum. It is the organization of the parts that requires creativity and flexibility in order to be successful. In other words, following static formulas designed to fit into a format that doesn’t address the interests of the constituents at the table no longer works. The idealists who started the mediation movement recognized the need to tease out the best components the process has to offer in order to create movement toward settlement. They identified the importance of demonstrating to the advocate whatever available financial opportunities existed while concurrently inserting client satisfaction and empowerment into the mix. This is where the crystal ball of the future could be bright or the process could be part of the junkyard of other ideas designed to support the adversarial system.
Addressing The Needs of The Legal Community
What is it that the mediation community can do to address the mindsets of lawyers who have their own constituents to address? To begin with, demonstrate to them through process behavior that the community understands their goals. This might involve calling for a joint session in a way that explains why it makes sense and what impact it will have on the process, and then get their feedback on the approach. This is contrary to simply setting up a full room with anxious people who don’t know what to expect and are at the height of disagreement and anxiety.
What happened to the great idealists and their vision? Many simply adapted to and became the establishment. Mediocrity became the norm as the economics of the system drove idealists away from the larger purpose of control of outcome and empowerment. Idealists like Gandhi went on to lead a nation. King created a tribe of followers that to this day keeps the fire burning for civil rights for all mankind. Is there still a larger purpose the mediation community could provide in the future that is reminiscent of the leadership of Gandhi and King?
Stay tuned for Part VIII: Make Some Music With Lawyers
Read Part I: Introduction
Read Part II: History
Read Part IV: Adoption by the Courts
Read Part V: The Drift of Mediation
Read Part VI: Adapting to the Adversarial System
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
Related Posts
Where Have All The Idealists Gone? Long Time Passing, Part IX
Where Have All The Idealists Gone? Long Time Passing, Part VI
Where Have All The Idealists Gone? Long Time Passing, Part III
CFPB Requests Comments on the Use of Agreements Providing for Arbitration | Deadline June 23, 2012
Texas A&M School of Law Expands ADR Curriculum Under New Dispute Resolution Program Director
Professor Alan Scott Rau Gives Justice Souter a C-minus
