When it Doesn’t Look, Smell, Or Quack Like Mediation

I recently got an open house invitation to a new mediation practitioner’s office in an area not too far from Compound West.  The new “Mediation Center” had a fancy set of invitations, and links to a new website. As I am one who always welcomes another interested soul in bringing change to the legal profession through alternative dispute resolution, I went to the new “mediation center’s” website, and took a gander at the text on the page.  What I saw didn’t necessarily give me very much hope for the way this “mediation center” will work out. The website didn’t list one bit of a reason as to why the mediator chose this line of work or why he believed in the profession.  Rather, the “About Us” section read like a law firm website bio, listing the amount of cases tried, accomplishments in the legal field, committees on which the mediator has served, and his hobbies and interests. Adding to that, there’s a section in the “mediation center’s” website that helpfully talks about mediation in the following capacity.  I’m quoting semi-directly from the “mediation center’s” website, and omitting personal details of the mediator, because I’m courteous and gracious to a fault:

Mediation is a voluntary, non-binding process using a neutral third party to guide the parties toward a mutually beneficial resolution of their dispute. Mediation is increasingly used by both plaintiffs and defendants and has established itself as a vital litigation tool by helping parties favorably resolve the lawsuit in a timely and cost effective manner. Experienced trial attorneys know very well the risk-benefit balance inherent in taking a case to trial, and understand that, in some cases, their clients are better served through mediating the issues. Besides risk-management, mediation is useful in the following situations:

  • The other side is not evaluating your case realistically.
  • The other side is not responding to your negotiation attempts.
  • Your client is concerned about confidentiality.
  • Your client wants to avoid setting a legal precedent
  • The number of parties and/or complexity of issues makes direct negotiation impractical or impossible.

[The] “Mediation Center’s” founder, [REDACTED],  has practiced over thirty years and has honed his ability to: 1) identify and isolate the primary contested issues; 2) provide an honest and clear-sighted evaluation of each side’s position; and 3) offer creative and insightful solutions to bring both sides together. [REDACTED] cares deeply about resolving your case and persistently and tenaciously work to bring the sides together until your favorable result is achieved.

(my own emphasis added above)

Sounds great on initial glance.  It really does.  But one quick glance at the above positions shows this is not a site built for the layperson, and it is not a site where a party can come to truly learn more about mediation as it is commonly practiced or even taught.  I’ve highlighted a couple of the statements that grate at me like nails on a chalkboard so we can suss them out and see what’s wrong with this entire picture of mediation “education.”

1. Mediation is not a “vital litigation tool.” It is a form of alternative dispute resolution where parties have an effective discussion facilitated by a neutral third party to come up with solutions outside of the normal litigation process to dispose of a case.  Too many attorneys consider mediation a “trial lab” to evaluate their case before it goes to court, and too many mediators facilitate that by letting attorneys speak too much and argue a case instead of letting the parties work through their respective problems.  (See Tennessee Supreme Court Rule 31, Section 2(i)).

2. A mediator’s practice experience in a courtroom means nothing.  I’ve had people get surprised when they find out Rule 31 Mediators are also psychologists, social workers, and even people with communications degrees from other walks of life.  This is all perfectly acceptable, because when a party walks into a room for mediation they are not attempting to finish their case in court.  This is why we refer to mediation as “alternative dispute resolution.”  Sure, it helps if a mediator knows whether a party solution will fly in front of a judge once the settlement agreement is presented, but that doesn’t have to be the determining factor in a case.  Remember, if you’re going into a mediation, it’s YOUR story and YOUR dispute, not the attorneys’.  More importantly, you’re not in court.  (See Tennessee Supreme Court Rule 31, Section 2(h))

3. A mediator identifying problems, evaluating a case’s strengths, and offering solutions isn’t practicing mediation. If you look at the first two points, you’ll see what’s wrong with identifying and isolating “the primary contested issues,” providing “an honest and clear-sighted evaluation of each side’s position,” and offering “creative and insightful solutions to bring both sides together.”  In mediation, a mediator shouldn’t be doing that, because they’re present to facilitate party discussion.  The parties are the ones whose opinion matters, not the mediator’s.  The mediator shouldn’t be identifying the problems, because it’s not his dispute.  The mediator shouldn’t be evaluating a case’s strengths or weaknesses, because it’s not the mediator’s case.  That’s called “evaluative case analysis,” and it’s a form of alternative dispute resolution, but it’s not mediation. (See Tennessee Supreme Court Rule 31, Section 2(c)).  Finally, a mediator that offers solutions isn’t practicing mediation and is running on the razor’s edge of violating neutrality.  What if the proposed “creative and insightful solution” isn’t favorable to one party in the dispute?  What if it gives one party too much of the proposed pie?  What if the other party doesn’t feel as though they have power in the mediation room because the mediator is the one doing all the talking, and clams up as a result?  None of this is mediation–it’s a process that is corrupting the way mediation is defined and recognized even in Tennessee.

Stuff like this “mediation center” and its website does the world of alternative dispute resolution absolutely no good.  It’s becoming far too often that former trial lawyers will stop taking cases and move to “mediation,” because they’re tired of seeing people fight and they want some authority in how a case is settled.  While I personally welcome new mediators into the fold, and I want to see mediation flourish, I want to see it done right, and I don’t want to see “education” like this corrupting the public’s view of what mediation is or should be.

Take the time to learn what mediation really is, and see for yourself that a process espoused by “mediators” like this “mediation center” offers isn’t mediation.  Educate yourself and make sure your attorney knows what mediation actually is.  You’ll be glad you did, and you’ll be more satisfied with the outcome.

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