Mediators have long asked themselves, and one another, why more people don’t engage in mediation. The process has so many advantages and few drawbacks, that it is difficult to understand why relatively few people are at least willing to try it.
Consider that mediation:
- is generally a lot quicker than going to court;
- much less expensive;
- less adversarial, as parties are helped to listen to and understand one another, and then to work together; as opposed to the polarizing experience of litigation;
- allows the people having the dispute to make their own decisions, rather than a judge deciding questions for them;
- is voluntary, meaning that either party can end the process at any time; and,
- allows for greater creativity in developing responses and solutions to conflict; because the spouses (or other parties) are experts in regard to what they want and need (as opposed to a judge who is a stranger, and one loaded down with a large docket of cases that doesn’t leave him or her time to fully consider many options).
What’s not to like? What’s the risk? Why oh why don’t we (mediators) have an overflow of clients? So many clients that we need to refer and turn them away in droves? Bernard Mayer – mediator, facilitator, trainer, researcher – offers an answer to the question that I had never thoughtfully considered before reading his book, Staying with Conflict: A Strategic Approach to Ongoing Conflict.
I have long believed that most people don’t try mediation when they are engaged in a conflict largely because:
- they don’t have information about what mediation is/how it works, and so “don’t realize what they are missing” (including that the results are binding, if the parties want them to be);
- going to court is familiar – think about the hundreds of movies, TV shows and novels involving a courtroom drama; and now see if you can name three dealing with mediation. While people know that going to court (and perhaps to ‘divorce court’ most of all) can be a bitter and difficult experience, doing so still means dealing with ‘the devil you know’; and,
- family and friends are quick to suggest what may be conventional wisdom – hire the meanest, nastiest lawyer you can; feeling vulnerable, and perhaps angry, saddened, tired or confused, people follow that advice, usually not knowing what they are in for, and that there are other methods that may well work for them.
In his book, Mayer discusses another reason:
Perhaps some people don’t believe mediators when we talk about helping to ‘resolve conflicts’ (or to ‘resolve’ disputes). Alternative dispute resolution may not be credible to people engaged in what Mayer calls ‘enduring conflict’ or ‘long-term conflict’.
Example: If a mediator told you that s/he could help the parties resolve a crisis in the Middle East (take your pick of which one), you would probably be skeptical, to say the least. Many of the conflicts are deeply rooted and have been going on for decades or longer. That anyone is going to resolve (end/finish) such a conflict doesn’t seem realistic.
But what if the mediator said to you that, “I think I can work with the parties to help them manage the conflict. I don’t have any illusions that I or any mediator can help all of the parties I work with to settle all of the issues for all time. What I can do is assist them in discussing some of the most pressing and immediate problems; I may be able to help them reach some agreement(s) to improve the situation (such as for a cease fire or prisoner exchange during a war). As a mediator, I can work with them on choosing ways to keep communication going, and help them to take advantage of opportunities to work together as the conflict continues.”
If the mediator is referring to a crisis in the Middle East, what s/he is proposing – helping the parties to manage the conflict – is still a very tall order. But it has happened, as hard as that may be to believe with the chaos engulfing the region at present.
Enduring conflict does not only exist on the international level, or have to involve matters of life and death. Such conflicts may exist between business partners, teachers and parents working with a special needs child, communities and local governments, environmental groups and industry, two parents over child-care issues or religious upbringing; and of course, in many other situations.
Next time: What ‘enduring conflict’ may mean for divorcing parents; and for the mediators working with them.
All blog posts are for information purposes, and should not be considered as legal advice.